
Glass 11^5 $ 
Book 'i^ C; 



Is Davis a Traitor : 



OR 



WAS SECESSION A CONSTITUTIONAL EIGHT 



PREVIOUS TO 



THE WAE OF 18G1? 



BY 

■J 

ALBERT TAYLOR' BLEDSOE, A. M, LL. D. 
(I 

Late rrofcssoi- ol" Mathomatics in the Univcrsitj' of Va. 



• vjxary of Co/, J, 

1807 ': 

c' BALTIMORE: 

PRINTED FOR THE AUTHOR, BY INNES k COMPANY, 
186G. 



3a 



Entered according to Act of Congress, in the year 1S66, by 

ALBERT TAYLOR BLEDSOE, A. M., LL. D., 

In the Clerli's Office of the District Court of the United States 

for the District of Maryland. 



CONTENTS. 



CHAPTER 1. 

Opinions respecting Secession determined by passion, not by reason Page 1 

CHAPTEK TI. 
Tlie Is^ue ; or Point in Controversy (i 



CHAPTER III. 
•'Tlie Great Expounder" scouts the idea, that the States "acceded" to the Consti- 



CHAPTER IV. 
The first Resolution passed by the Convention of I'lS? 18 



CHAPTER V. 
I'he Constitution of i;r; a Compact 



CHAPTER VI. 

The Coiistitiition of UST a Compact . 



( HAPTER VII. 

Tlie ("onstitntion of lis: a Compact 



CHAPTER VIII. 
The Constitution of 1?87 a Compact between tlie States.— The Facts of the Case 47 

CHAPTER IX. 
The Constitution a Compact between the States.— The Language of the Constitution. .>s 

CHAPTER X. 
Tlie Constitution of 178; a Compact between the States.— The Language of the Con- 
stitution or, 

CHAPTER XI. 

The Constitution of IIST a Compact between tlie States.— The views of Hamilton, 
Madison, Morris, and other FraiiuT'i of the Con';iiiution 74 



Yl PREFACE. 

and the Constitution of 1787 as it ctinie from the hands 
of the fiithers. 

The radicals themselves may, if they will only read the 
following pages, find sufficient reason to doubt their own 
infallibility, and to relent in their bitter persecutions of 
the South. 

The calm and impartial reader will, it is believed, discov- 
er therein the grounds on which the South ma}' be vindi- 
cated, and the final verdict of Histor}^ determined in favor 
of a gallant, but down-trodden and oppressed, People. 



IS DAVIS A TRAITOR? 



CHAPTER I. 

Opinions respecting Secession determined by passion, not by reason. 

The final judgment of Histoiy in relation to the war of 
1861 will, in no small degree, depend on its verdict with 
respect to the right of secession. If, when this right was 
practically asserted by the vSouth, it had been conceded by 
the North, there would not have been even a pretext for 
the tremendous conflict which followed. Is it not won- 
derful, then, that a question of such magnitu.de and import- 
ance should have been so little considered, or discussed? 
Perhaps no other question of political philosophy, or of 
international law, pregnant with such unutterable calami- 
ties, has ever been so partially and so superficially exam- 
ined as the right of secession from the Federal Union of 
the United States. Fi-om first to last, it seems to have 
been decided by passion, and not by reason. The voice 
of reason, enlightened by the study of the facts of history 
and the principles of political philosophy, yet remains to 
be heard on the subject of secession. 

No one, at present, denies that the States had a right to 
secede from the Union formed by the old Articles of Con- 
federation. Indeed, this right was claimed and exercised 
by the States, when they withdrew from that Confedera- 
tion in order to form " a more perfect Union." Yet, while 
that Union was standing and in favor with the people, the 
right of secession therefrom was vehemently denied. The 



2 IS DAVIS A TRAITOR? 

reason of this is well stated by Mr. Madison in " The Fed- 
eralist." Having explained and vindicated the right of 
the States, or any portion of them, to secede from the 
existing Union, he adds : " The time has been when it was 
incumbent on all of us to veil the ideas which this para- 
graph exhibits. The scene has now changed, and with it 
the part which the same motives dictate."* That is to say, 
the time has been when it became all Americans, as patriots 
and worshippers of the existing Union, to veil the right of 
secession ; but now is the time to unveil this sacred right, 
and let the truth be seen ! Accordingly, the Convention 
of 1787 unveiled this right, and the States, one after 
another, seceded from the Union ; though the Articles by 
which it was formed expressly declared that it should be 
" perpetual," or last forever. 

The same thing happened, in a still greater degree, 
under the new and "more perfect Union." This, unlike 
the one for which it had been substituted, did not pro- 
nounce itself immortal. Still it was deemed incumbent on 
all men by Mr. Madison, and especially upon himself, to 
veil the right of secession from the new Union ; which he, 
more than any other man, had labored to establish and 
preserve. But having exercised the right of secession from 
one compact between the States, how could he veil that 
right under another compact between the same parties ? 
Having, for the benefit of his age, revealed the truth, how 
could he hope to hide it from all future ages ? Having 
laid down the right of secession from one Federal Union, 
as the great fundamental law to which the new Union 
owed its very existence, how could he hope to cover it up 
again, and make the new compACt forever binding on pos- 
terity ? Thei*e is not, it is believed, in the whole range of 
literature, a sophism more ineffably weak and flimsy than 
the oaie employed by Mr. Madison to veil the right of 
secession from the new Union. 

*Fe<ieralist No. xliii. 



IS DAVIS A TRAITOR? 3 

The first compact, says he, was made by the Legislatures 
of the States, and the second by the people themselves of 
the States. Hence, although the States had seceded from 
the first compact or Union, he supposed, or hoj)ed, they 
would have no right to secede from the second.* The 
first compact was, it is true, originally adopted by the 
Legislatures of the States ; but then it was approved by 
the people themselves, who lived under it as the Constitu- 
tion and government of their choice. "Were not the States, 
then, just as much bound by this compact, as if it had been 
originally made by the people themselves ? What would 
be thought of an individual, who should approve and adopt 
as his own a contract made by his agent, and, having 
derived all the advantages of it, should seek to repudiate it 
on the ground that it was not originally entered into by 
himself? He would be deemed infamous. Yet, precisely 
such is the distinction and the logic of Mr. -Madison,' in his 
attempt to justify the act of secession from the first Union, 
and to deny the right of secession from the second Union 
between the same parties ! The two compacts are con- 
strued differently ; because the one was originally made by 
agents and afterwards ratified by the principals, and the 
other was originally made by the principals themselves ! 
Could any sophism be more weak or flimsy ? Is it not, 
indeed, in the eye of reason, as thin as gossamer, as trans- 
parent as the air itself? Hopeless, indeed, must be the 
attempt to find a difference between the two cases, which 
shall establish the right of secession in the one and not in 
the other; since James Madison himself, with all his unsur- 
passed powers of logic and acute discrimination, was com- 
pelled to rely on so futile a distinction. 

But the majority needed no veil, not even one as thin as 
that emploj^ed by Mr. Madison, to conceal the right of 
secession from their ej^es. The mists raised by its own 
passions were amply sufficient for that purpose. The doc- 

* The Madison Papers, p. 1184. 



4 IS DAVIS A TRAITOR? 

trine of secession was regarded, by the reigning majority, 
as simply equivalent to the destruction of " the best Gov- 
ernment the world had ever seen," or was ever likely to 
see. Hence, before the dread tribunal of the sovereign 
majority, the touch of secession was pohtical death. The 
public men of the country, and all aspirants after office, 
shrank from it as from plague, pestilence, and famine. As 
to whether secession was a Constitutional right or other- 
wise, the multitude knew nothing, and cared less; but still, 
in their passionate zeal, they denounced it as rebellion, trea- 
son, and every other crime in the dark catalogue of politi- 
cal offences. Their leaders, having studied the subject as 
little as themselves, were no less ignorant respecting the 
merits of the question, and even more fierce in denouncing 
secession as the sum of all villainies, treasons, and rebel- 
lions. Thus, what the logic of Mr. Madison failed to accom- 
plish, was achieved by the rhetoric of angry politicians 
and the passions of an infuriated majority ; that is, the 
right of secession was veiled. The object of this little book . 
is simply to appeal from the mad forum of passion to the 
calm tribunal of reason. 

But why, it may be asked, appeal to reason? * Has not 
the war of secession been waged, and the South subjuga- 
ted? Can reason, however victorious, bind up the broken 
heart, or call the dead to life? Can reason cause the des- 
olate, dark, waste places of the South to smile again, or 
the hearts of her downcast and dejected people to rejoice? 
Can reason strike the fetters from the limbs of the down- 
trodden white i^opulation of the South? True, alas! rea- 
son can do none of these things; but still she has a high 
office and duty to perform. For, however sore her calam- 
ities, all is not j^et lost to our bleeding and beloved South. 
She still retains that which, to every true man, is infinitely 
dearer than property or life. She still retains her moral 
wealth, — the glory of her Jacksons, her Sidney Johnsons, 
her Lees, her Davises, and of all who have nobly died or 



IS DAVIS A TRAITOR? 5 

suffered in her cause. These are her imperishable jewels; 
and, since little else is left to her, these shall be cherished 
with the greater love, with the more enthusiastic and 
undying devotion. 

Let no one ask, then, except a dead soul, why argue the 
question of secession? For, it is precisely as this question 
is decided, that the Jac'ksons, the Johnsons, the Lees, and j * 
the Davises of the South, will be pronounced rebels and fi »\_ 
traitors, or heroes and martyrs ; that the South itself will 
be disgraced, or honored, in the estimation of mankind. 
History is, at this moment, busy in making up her verdict I 
on this momentous question; which is to determine so 
much that is most dear to every true son of the South. 
Shall we, then, remain idle sj)ectators, mere passive look- 
ers-on, while the ISTorth is flooding the world with volumes 
against the justice of our cause? Shall we stand, like the 
dumb brutes around us, having no word to utter in the 
great cause of truth, justice and humanity, which is now 
pending at the bar of History ? Or shall we, on the con- 
trary, contribute our mite toward the just decision of that 
glorious cause ? The radicals themselves might, perhaps, 
derive some little benefit from our humble labors. For, if 
duly weighed and considered by them, these labors might 
serve to mitigate their wrath, and turn their thoughts 
from schemes of vengeance to the administration of jus- 
tice, from persecution and ruin to peace and prosperity. 
Be this as it may, however, I shall proceed to argue the 
right of secession; because this is the great issue on 
which the whole Southern people, the dead as well as the 
living, is about to be tried in the person of their illustrious 
chief, Jefferson Davis. 



CHAPTEE II. 

The Issue; or Point in Controversy. 

It is conceded, both by "Webster and Story, that if the 
Constitution is a compact to which the States are the par- 
ties, then the States have a right to secede from the Union 
at pleasure. Thus, says Webster, in stating the conse- 
quences of Mr. Calhoun's doctrine — "if a league between 
sovereign powers have no limitation as to the time of 
duration, and contain nothing making it perpetual, it 
subsists only during the good pleasure of the parties, 
although no violation be complained of. If, in the opin- 
ion of either party, it be violated, such party may say he 
will no longer fulfil its obligations on his part, but will 
consider the whole league or compact at an end, although 
it might be one of its stipulations that it should be perpet- 
ual." In like manner Mr. Justice Story says — "The 
obvious deductions which may be, and, indeed, have been, 
drawn from considering the Constitution a compact 
between States, are that it operates as a mere treaty or 
convention between them, and has an O'bligatory force no 
longer than suits its pleasure or its consent continues,"* &c. 
Thus the great controversy is narrowed down to the sin- 
gle question — Is the Constitution a compact between the 
States? If so, then the right of secession is conceded, 
even by its most powerful and determined opponents ; by 

*" Commentaries on the Constitution," vol. iii, p. 287, first pub- 
lished in 1833. 



IS DAVIS A TRAITOR? 7 

the great jurist, as well as by " tlie great expounder" of 
the North. 

The denial that the Constitution was a compact, is pre- 
sented in every possible form, or variety of expression. 
We are told, that it was not made by the States, nor by 
the people of the States, but " by the people of the whole 
United States in the aggregate."* The States, we are 
assured, did not accede to the Constitution ; it was ordained 
by the sovereign people of America as one nation. Echo- 
ing the bold assertion of Webster, Mr. Motley says, that 
" The States never acceded to the Constitution, and have 
no power to secede from it. It was ' ordained and estab- 
lished ' over the States by a power superior to the States, 
by the people of the whole land in their aggregate capa- 
cityf." It was not made by the States, and it was not 
ratified by the States. It was, on the contrary, made 
and ordained by the people of America as one nation, 
and is, therefore, the constitution of a national govern- 
ment. Such is the doctrine which, in every mode of 
expression, is inculcated by the Story s, the Websters, and 
the Motleys of the JSTorth. 

When we consider, in the simple light of history, the 
manner in which the Constitution of the United States 
was made, or framed, and afterwards ratified, such asser- 
tions seem exceedingly wonderful, not to say inexplicable 
on the supposition that their authors were honest men. 
But who can measure the mysterious depths of party 
spirit, or the force of political passions in a democracy? 
I know something of that force ; for, during the greater 
part of my life, I followed, with implicit confidence, those 
blind leaders of the blind, Mr. Justice Story and Daniel 
Webster. History will yet open the eyes of the world to 
the strange audacity of their assertions. 
y^S^S ^ since the Declaration of In de pendence, the re have 
b een two great p olifical parties in the United States;"" the" 
* Webster. f Rebellion Record, vol. 1, p. 211. 



8 IS DAVIS A TRAITOR? 

one, regarding the American people as one nation, has 
ilaborcil to consolidate the Federal Union, while the other, 
ittaching itself to the reserved rights of the States, has 
se riousl y resisted this teiuleiicv to consolidation in the 
jSJjjjaLpoSS'.ei*. yK^ven under the old Articles of Confeder-' 
ation, or before the new Constitution was formed, these 
political opinions and parties existed. For, however 
strange it may seem, there were those who, even under 
those Articles, considered "the States as Districts of peo- 
ple composing one political society;"* or the "American 
people as forming one nation." f ISTay, in the great Con- 
vention of 1787, by which the Constitution was formed, it 
was boldly asserted b}^ a leading member, "that we never 
were independent States, were not such now, and never 
could be, even on the principles of the Confederation. 
The States, and the advocates of them, were intoxicated 
with the idea of their sovereignty." J 'Now, if any aberra- 
tion of the mind under the influence of political passions 
could seem strange to the student of history, it would be 
truly wonderful, that such an assertion could have been 
put forth under the Articles of Confederation which 
expressly declared that "each State" of the Union formed 
by them "retains its sovereignty, freedom, and indepen- 
dence. " § The author of that assertion did not interpret, 
he flatly contradicted, the fundamental law of the govern- 
ment under which he lived and acted. 

The above opinion or view of the old Articles of Con- 
federation passed away with the passions to wlucj, it owed 
its birth. No one, at the present day, supposes that the 
old Articles moulded the States into " one political soci- 
ety," or "nation," leaving them merely "districts of peo- 
ple." For since those Articles have passed awaj", and the 
struggle for power under them has ceased, all can clearly 

*Taiie Madison Papers, p. 987. 

t Marshall's Life of Washington, vol. v, chap. 1. 

X The Madison Papers. § Article 2. 



IS DAVIS A TRAITOR? 9 

see what they so plainly announced that '"each state" of 
the confederation established by them retained "its sover- 
eignty, freedom, and independence." 

But the natures of men were not changed by changing 
the objects to which their political passions might attach 
themselves. Hence the same opposite tendencies arose 
under the new " Articles of Union," as the Constitution of 
1787 is habitually called by its authors, and produced the 
same conflicting parties. Each party had, of course, its 
extreme wing. There were those who, unduly depressing 
the States, identified their relations to the central power 
with that of so man}' counties to a state, or of individuals 
to an ordinary political community. On the other hand, 
there were those who, from an extreme jealousy of the 
central authority, resolved the States into their original 
independence, or into their condition under the Articles 
of Confederation. The watch-word of one party was the 
sovereignty of the Federal Union ; and the watch-word of 
the other, was the sovereignty of the States. 

-It was in the Senate of the United States, in 1833, that 
these two theories of the Constitution stood face to face in 
the persons of those two intellectual giants — Webster and 
Calhoun — then ena-affed in the most memorable debate of 
the Xew World. It was then predicted, and events have 
since verified the prediction, that the destinies of America 
would hinge and turn on the principles of that great 
debate. The war of words then waged between the 
giants has since become a war of deeds and blood between 
the sections which they represented, Now the question 
is, on which side was right, truth, justice ? 

This is precisely the question which, in 1833, the great 
combatants submitted to the decision of after ages. As 
he drew toward the close of his speech, Mr. Calhoun 
reminded his great antagonist "that the principles he 
might advance would be subjected to the revision of poster- 
ity." " I do not decline its judgment," said Mr. Webst&r, in 
*2 



10 IS DAVIS A TRAITOR? 

rising to reply, "nor witlihold myself from its scrutiny." 
Mr-Webster's speech on this occasion is pronounced by his 
learned biographer* the greatest intellectual effort of his 
life, and is represented as having annihilated every posi- 
tion assumed by Mr. Calhoun. But the combatants did 
not submit the controversy to the judgment of Mr. Ever- 
ett; they submitted it to "the revision of posterity." His- 
tory is the great tribunal to which they appealed ; and his- 
tory will settle the great issue between them, and between 
the two hostile sections of the Union: 

.Vlt was in 1833, for the first time in the history of the 
country, that it was splcnuUj^ asserted and argued, that 
the Constitution of the United States was not a compact 
l^eTween the S tates. yThis new doctrine was simultane- 
ously put forth, b}^ Mr. Justice Story in his " Commenta- 
ries on the Constitution of the United States," and by Mr. 
Daniel "Webster in "the greatest intellectual effort of his 
life," that is, in his great speech in the. Senate of the 16th 
of February, 1833. In order to show that the Constitu- 
tion is not a compact between the States, the position is i 
assumed, that it is not a compact at alL^' If iU lnfiitJi 
j^fv^f^gy ^bfty ^ thgiT^^the St^ates^ had a _^right to secede.' 
But it is not a compact; and hence secession is treasoM 
and rebellion. The great fundamental questions, then, on 
which the whole controversy hinges, are, first. Is the 
Constitution a compact? and, secondly. Is it a compact 
between the States ? These are the questions which shall 
and ought to be subjected to "the revision of posterity." 

* Edward Everett. 



CHAPTEE III. 

" The great expounder'^ scouts the idea, that the States ''acceded'''' to the Constitution, 

Mr. Webster was supposed to have studied the Consti- 
tution, and its history, more carefully and more profoundly 
than any other man. He habituallj^ spoke, indeed, as if he 
had every particle of its meaning, and of its history, at 
his finger's end. Hence he acquired, at least among his 
political friends, the lofty title of " The great expounder." 
His utterances were listened to as oracles. If, indeed, his 
great mind had been guided by a knowledge of facts, or a 
supreme love of truth ; the irresistible force of his logic, and 
the commanding powers of his eloquence, would have jus- 
tified those who delighted to call him " the god-like Dan- 
iel." But, unfortunately, no part of his god-likeness con- 
sisted in a scrupulous regard for truth, or the accuracy of 
his assertions. y'*ITe was, however, so great a master of 
wiii'ds. thai hi' stood in little need of facts, in order to pro- 
duce a grand impression by the rolling thunders of his elo- 
quence. -A only wonder, that he was not also called, "The 
tliiuKk'i-er." JSTo one better understood, either in theory 
or iii practice, the wonderful magic of words than Daniel 
AVebster. 

" Was it Mirabeau," says he, " or some other master of 
the human passions, who has told us that words are 
things? They are indeed things, and things of mighty 
influence, not only in addresses -to the passions and high- 
wrought feelings of mankind, but in the discussion of legal 
and political questions also j because a just conclusion is 



12 IS DAVIS A TRAITOR? 

often avoided, or a false one reached, by the adroit substi- 
tution of one phrase, or one word, for another." Nothing 
can be more just than this general reflection ; and nothing, 
as we shall presently see, can be more unjust than the 
application made of it by Mr. Webster. 

He finds an example of this adroit use of language in the 
first resolution of Mr. Calhoun. "The first resolution," 
says he, "declares that the people of the several States 
' acceded ' to the Constitution." As " the natural converse 
of accession is secession" so Mi*. Webster supposes that Cal- 
houn has adroitly, and "not without a well-considered 
purpose," shaped his premises to a foregone conclusion. 
"When it is stated," says he, "that the people of the State 
acceded to the Union, it may be more plausibly argued that 
they may secede from it. If, in adopting the Constitution, 
nothing was done but acceding to a compact, nothing would 
seem necessary, in order to break it up, but to secede from 
the same compact." 

But "this term accede" asserts Mr. Webster, "is wholly 

out of place There is more importance than may, 

at first sight, appear in the introduction of this new word 

by the honoi*able mover of the resolutions." " The 

people of the United States," he continues, " used no such 
form of expression in establishing the present Govern- 
ment." It is " unconstitutional language." Such 

are a few of the bold, sweeping, and confident assertions of 
" the great expounder of the Constitution." But how 
stands the fact? Is this really " a new word ;" or is it as 
old as the Constitution itself, and rendered almost obsolete 
at the North by the progress of new ideas and new forms 
of speech ? Was it not, in fact, as familiar to the very 
fathers and framers of the Constitution of the United 
States as it afterwards become foreign and strange to the 
ears of its Northern expounders ? This is the question ; 
and, fortuBately, the answer is free from all m-etaphysical 
refinement, from all logical subtlety, from all curious sjDee- 



IS DAVIS A TRAITOR? 13 

ulation. For there lies the open record, with this very 
word accede, and this very application of the word, spread 
all over its ample pages in the most abundant profusion. 
ISTo mode of expression is, indeed, more common with the 
fathers and the framers of the Constitution, while speak- 
ing of tJie act of its adoption, than this very phrase, " the 
accession of the States." No household word ever fell more 
frequently or more familiarly from their lips. 

Thus in the Convention of 1787, Mr. James Wilson, to 
whose great influence the historian of the Constitution 
ascribes its adoption by the State of Pennsylvania,* pre- 
ferred "a partial union " of the States, "with a door open 
for the accession of the rest," rather than to see their dis- 
position "to confederate anew on better principles" 
entirely defeated.f "But will the small States," asks 
another member of the same Convention, " in that case, 
accede to it " (the Constitution ?) Mr. Gerry, a delegate 
from Massachusetts, was opposed to " a partial confed- 
eracy, leaving other States to accede or not to accede, as 
had been intimated. "| Even Mr. Madison, " the father of 
the Constitution," as by way of eminence he has long been 
called, used the expression " to accede " in the Convention 
of 1787, in order to denote the act of adopting " the new 
form of government by the States. "§ 

In like manner Governor Randolph, who was also a 
member of the Convention of 1787, and who had just 
reported the form of ratification to be used by the State 
of Virginia, said, " That the accession of eight States 
reduced our deliberations to the single question of Union 
or no Union." " If it (the Constitution,") says Patrick 
Henry, "be amended, every State will accede to it."|| 
" Does she (Virginia) gain anything from her central posi- 
tion," asks Mr. Grayson, " by acceding to that paper," the 

* Mr. Curtis, vol. i., p. 465. f " The Madison Papers," p. 797. 
Jlbid, p. liMi. §Ibid, p. 1108. ||"Elliot's Debates," vol. iii., p. 652. 



14 IS DAVIS A TRAITOR? 

Constitution ?* "I came hither," says Mr. Innes, " under 
the persuasion that the felicity of our country required 
that we should accede to this system," f (the new Constitu- 
tion.) "Our new Constitution," says Franklin, who next 
to Washington was the most illustrious member of the 
Convention of 1787, "is now established with eleven 
States, and the accession of a twelfth is soon expected."| 
And, finally, George Washington himself, who, watching 
the States as one after another adopted the new Constitu- 
tion, says : — "If these, with the States eastAvard and north- 
ward of us, should accede to the Federal Government,'' 
&c.§ Thus, while the transaction was passing before their 
eyes the fathers of the Constitution, of the United States, 
with the great father of his country at their head, 
described the act \)y Avhich the new Union was formed as 
" the accession of the States ;" using the very expression 
which, in the resolution of Mr. Calhoun, is so vehd^ently 
condemned as ."unconstitutional language," as "a new 
word," invented by the advocates of secession for the vile 
purpose of disunion. 

To these high authorities, may be added that of Chief 
Justice Marshall ; who, in his Life of Washington, notes 
the fact, that "North Carolina accedes to the Union. "|| 
This was many months after .the new Government had 
gone into operation. Mr. Justice Story, is, in spite of his 
artificial theory of Constitution, a witness to the same fact. 
"The Constitution," says he, "has been ratified by all 

the States ;" " Ehode Island did not accede to it, until 

more than a year after it had been in operation;" just as 
if he had completely forgotten his own theory of the Con- 
stitution.^ 

* "The Madison Papers," p. 1099. 

t "Elliot's Debates," vol. iii. 

j " Franklin's Works," vol. v.. p. 409._ 

I " The Writings of Washington," vol. ix., p. 280. 

II Vol. V, chap. iii. 
j[Book iii, chap, xliii. 



IS DAVIS A TRAITOR? 15 

If it were necessary, this list of authorities for the use 
of the word in question, and for the j^recise application 
made of it by Mr. Calhoun, might be greatly extended. 
But surely we have seen enough to show how very ill- 
informed was "the great expounder" with respect to the 
language of the fathers. Not only John C. Calhoun, but 
Washington, Franklin, AYilson, King, Morris, Eandolph, 
Madison, and all the celebrated names of the great Con- 
vention of 1787, came under the denunciation of this mod- 
ern " expounder of the Constitution." 

There is, as Mr. Webster says, more importance to be 
attached to the word in question than may at first sight 
appear. For if "the States acceded" to the Constitution, 
each acting for itself alone, then was it a voluntary asso- 
ciation of States, from which, according to his own admis- 
sion, any member might secede at pleasure. Accordingly 
this position of the great oracle of the North is echoed and 
re-echoed by all who, since the war began, have written 
against the right of secession. Thus, says one of the most 
faithful of these echoes, Mr. Motley — " The States never 
acceded to the Constitution, and have no power to secede ' 
from it." It was " ordained and established " over the 
States by a power superior to the States, by the people of 
the whole land in their aggregate capacity.* If, with the 
fathers of the Constitution, in opposition to its modern 
expounder and perverter, he had seen that the new Union 
was formed by an accession of the States, then he would 
have been compelled, on his own priucij^le, to recognise the 
right of secession. For he has truly said, what no one 
ever denied, that " the same power which established the 
Constitution maj^ j^^stly destroy it."f Hence, if the Con- 
stitution was established by the accession or consent of the 
States, then may the Union be dissolved by a secession of 
the States. This conclusion-is, as we have seen, expressly 
admitted by Mr. Webster and Mr. Justice Story. 

* Kebellion Record, vol. 1, p. 211. f Ibid. p. 214. 



16 IS DAVIS A TRAITOR? 

Mr. "Webster has well said that a true conclusion may be 
avoided, or a false one reached, b}- the substitution of one 
word or one phrase for another. This offence, however, has 
been committed, not by Mr. Calhoun, but by " the great 
expounder " himself The one has not reached a false, but 
the other has shunned a true conclusion by " the adroit 
use of language." Instead of saying and believing with 
the authors of the Constitution, that the new Union was 
formed by " an accession of the States," he repudiates both 
the language and the idea, pi'eferring the monstrous heresy 
that it was ordained and established by " the whole people 
of the United States in their aggregate capacity "* or as 
one nation — a heres}^ which maj', with the records o-f the 
country, be dashed into ten thousand atoms. 

I agree with Mr. Webster, that " words are things, and 
things of mighty influence." It is, no doubt, chiefly owing 
to the influence of language, in connection with the pas- 
sions of men in a numerical majority, that the words and 
views of the fathers became so oftensive to the Northern 
expounders of the Constitution. " Words," says the phil- 
osopher of Malmesbmy, '• are the counters of wise men, but 
the mone}' of fools." To which I may add, if this last 
phrase be true, as most unquestionably it is, then is there 
scarcely- a man on earth without some touch of folly ; for 
all are, more or less, xmder the influence of words. A far 
greater than either Mirabeau or Hobbes has said that we 
are often led captive by the influence of words, even when 
we think ourselves the most complete masters of them. 
Mr. Webster was himself, as we shall frequently have occa- 
sion to see, a conspicuous instance and illustration of the 
truth of the profound aphorism of Bacon. Of all the dupes 
of his own eloquence, of all the spell-bound cajDtives of his 
own enchantments, he was himself, perhaps, at times, the 
most deluded and the most unsuspecting victim. 

When, from his high position in the Senate, Mr. Webster 

*Mr. Webster's Speech of 1830. 



IS DAVIS A TRAITOR? 17 

assured the people of the United States, that it is "uncon- 
stitutional language" to say "the States acceded to the 
Constitution ;" he was no doubt religiously believed by the 
great majority of his readers and hearers. He was sup- 
posed to know all about the subject ; and was, therefore, 
followed as the great guide of the people. But, as we 
have seen, he was profoundly ignorant of the facts of the 
case, about which he delivered himself with so much con- 
fidence. The "new word," as he called it, was precisely 
the word of the fathers of the Constitution. Hence, if this 
word lays the foundation of secession, as Mr. AVebster 
contended it does, that foundation was laid, not by Cal- 
houn, but by the fathers of the Constitution itself, with 
" the father of his country " at their head. 

So much for the first link in " the great exj^ounder's " 
argument against the right of secession. His principles 
are right, but his facts are wrong. It is, indeed, his habit 
to make his own facts, and leave those of history to take 
care of themselves. He just puts forth assertions without 
knowing, and apparently without caring, whether they 
are true or otherwise. We shall frequently have occasion 
to notice this utter, this reckless unveracity in " the great 
expounder." 



CHAPTEEIV. 

The first Resolution passed by the Convention of 1787. 

•Mr. Webster lays great stress on the fact, that the first 
resolution passed by the Convention of 1787 declared, "That 
a national government ought to be established, consisting 
of a supreme legislative, judiciary, and executive." But 
the fact only shows that the Convention, when it first met, 
had the desire to establish ^^ixnational government," rather 
than a federal one. This resolution was passed before the 
Convention was fully assembled, and by the vote of onl^ 
six States, a niiiKH-it}' of the Avhole innnbcr, .After the 
inenil)ers had ari'ived, and tlu' Convention "sa^s full, the 
resolution in question was reconsidered and rescinded. 
The Convention, Avhen filled up, changed the name of their 
ort'spi-ing, calling it " the government of the United States.'**^/ 
A fraction of the Convention named it, as Mr. Webster 
says ; but the whole Convention refused to baptise it with ' 
that name, and gave it another. Why then resuscitate 
that discarded name, and place it before the reader, as Mr. 
Webster does, in capital letters ? Is it because " words are 
things ; and things of mighty influence" ? or why liersist, as 
Mr. Webster always does, in calling ''the government of the 
United States " a national one ? If the Convention had 
called it a national government, this name would have 
been so continually rung in our ears that we could neither 
have listened to the Constitution itself, or to its history, 
whenever these pi'oclaimed its federal character. Nay, 

*The Madison Papers, p. 908. 



IS DAVIS A TRAITOR? 19 

although the Convention positively refused to* name it a 
national government, on the avowed ground that it did 
not express their views, yet has this name been eternally 
rung in our ears by the I*^orthern School of politicians, 
and deelaimers ; just as if it had been adopted, instead of 
having beeii repudiated and rejected, as it was, by the 
ai^thors of the Constitution. 

In l ike manner Mr. Justice Story, in his " Commentaries 
on the Constitution '' builds an argument on the name 
given to thenew government " in the first resolution 
adopte d^ by th e convention," without the slightest allusion 
to the fact tha t this resolution was afterwards reconsid- 
lei'ed, and the name changcil to tliat of " the government of 
' t^e Uni ted Slates." Is this to reason, or merely to deceive ? 
Is this to build on niCts, or merely on exploded names ? Is 
this to follow the Convention in its deliberation, or is it to 
falsify its decision ? 

The Convention, by a vote of six States, decided that " a 
national government ought to be established." But when 
this resolution was reconsidered, Mr. Ellsworth " objected 
to the term national government"* and it was rejected. Th 
record says : " The first resolution ' that a national gov- 
ernment ought to be established,' being taken up." .... 
"Mr. Ellsworth, seconded by Mr. Corham, moves to alter 
it, so as to run that the government of the United States 
ought to consist, &c. . . This alteration, he said, would 
drop the word national, and retain the proper title " the 
United States.""}" This motion was unanimously adopted 
by the Convention. | That is, they unanimously rejected 
"the term national government," and yet both Story and 
"Webster build an argument on this term just as it had 
been retained by them ! 

The Madison Papers were not published, it is true, when 
the first edition of Story's Commentaries made their 

* The Madison Papers. flbid, p. 908. t Ibid, p. 909. 



20 IS DAVIS A TRAITOR? 

appearance ; but they were published long before subse- 
quent editions of that work. Why, then, was not this gross 
error corrected ? Why has it been rej)eated in every edi- 
tion of the Commentaries in question? Indeed, if Mr. 
Justice Story had desired to ascertain the truth in regard 
to the first resolution of the Convention, he might very 
easily have learned it from "Yates' Minutes," which were 
published before the first edition of his Commentaries. 
For, in those Minutes, we find the passage : " Ellsworth, 
I j)ropose, and therefore move, to expiyige the word 
"national," in the first resolve, and to place in the room of 
it, government of the United States, which was agreed to 
nem con.''* Yet, directly in the face of this, Mr. Justice 
Story builds an argument on the word national used in the 
first resolution passed by the Convention ! and, in order to 
give the greater efi'ect to the same argument, Mr. Webster 
prints that rescinded resolution in capital letters ! 

"The name 'United States of America'," says the 
younger Story, "is an unfortunate one, and has, doubtless, 
led many minds into error. For it may be said, if the 
States do not form a confederacy, why are they called 
"United States' "?f This name is, indeed, a most unfortu- 
nate one for the purpose of his argument, and for that of 
the whole school of politicians to which he belongs. But 
then, as we learn from the journal of the convention of 
1787, it was deliberately chosen by them as the most suit- 
able name for the work of their own hands ; and that too 
in preference to the very name which the whole Northern 
school clings to with such astonishing pertinacity. From 
the same journal, as well as from the other records of the 
country, I shall hereafter produce many other things 
which arc equally unfortunate for the grand argument of 
the Storj^s, the Websters, and the Motleys, of the North. 

* The Madison Papers, p. 908 f lt>id- P- ^^y. 

■4- II The American Question, by William H. Story. • 
Elliot's Debates. Vol. 1 p., 42fl. 



CIIAPTEE Y. 

27ie Constitution of 1787 a Compact. 

Was the constitution a compact ? "Was it a comiDact 
between the States, or to which the States were the par- 
ties ? Was it a compact from which any State might 
recede at pleasure ? These three questions are perfectly 
distinct, and all the rules of clear thinking require that 
they should be so held in our minds, instead of being 
mixed up and confounded in our discussions. Yet Mr. 
Justice Story, in his long chapter on the "Nature of the 
Constitution," discusses these questions, not separately 
and distinctly, but all in one confused mass, to the no little 
perplexity and distraction of his o\\ti mind. He carries 
them all along together, and in the darkness and confusion 
occasioned by this mode of proceeding, he is frequently 
enabled to elude the force of his adversaries' logic. 

Thus, for instance, he sets out with the tlat denial of the 
doctrine that the Constitution is a compact ; and yet, when 
the evidences become too strong for resistance, or a cloud 
of witnesses rise up to confound him, he turns ai'ound, 
and instead of fairly admitting that the Constitution is a 
compact, asserts that if it is a compact it is not one between 
the States. When too hardly pressed on this^jjosition, 
replies, well, if it is a compact between the States it is 
not such a compact that it may be revoked at the pleas- 
ure of the parties. Thus, when he is • driven from one 
position he foils back upon anotlier, and finally rallies to 
a second, a third, and a fourth denial of the main proposi- 



22 IS DAVIS A TRAITOR? 

tion that the Constitution is a compact. Now, I intend to 
discuss each one of these questions distinctly and by itself; 
holding Mr. Justice Story to one and the same precise 
point, until it is either made good or else demolished. I 
hope, in this way, to dispel the mists and fogs he has 
thrown around the subject, and to bring out the truth into 
a clear and unmistakable light. 

The same confusion of thought, and arising from the 
same source, pervades Mr. Webster's celebrated speech of 
Feb. 16, 1833 ; though it must be admitted, not to the same 
extent that it prevails in the "Commentaries" of Mr. 
Justice Story. Mr. Calhoun very justly complains of this 
want of clearness and precision in the positions of his great 
antagonist. "After a careful examination," says he, "of 
the notes which I took of what the Senator said, I am 
now at a loss to know whether, in the opinion of the Sen- 
ator, our Constitution is a compact or not, though the 
almost entire argument of the Senator was directed to 
that point. At one time he would seem to deny directly 
and positively that it Avas a compact, while at another he 
would appear, in language not less strong, to admit that it 
was."* 

Mr. Webster emphatically and repeatedly denies both 
that a Constitution is a compact and also that a compact is 
a Constitution ; or, in other words, he conceives that the 
natures of the two things are utterly incompatible with 
each other. 

He is very bold, and asserts that it is new language to 
call "the Constitution a compact." 

"This is the reason,' says he, "which makes it necessary 
to abandon the use of Constitutional language for a ncAv 
vocabulary, and to substitute, in place of plain historical 
facts, a series of assumptions. This is the reason why it 
is necessary, to give new names to things, to speak of the 
Constitution, not as a Constitution, but as a •ompact, and 
~* Mr.' Calhoun's speecbLT Feb7 2671833^ 



IS DAVIS A TRAITOR? 23 

of the ratifications of the people not as ratifications, but as 
acts of accession."* Again, he comphiins of Mr. Calhoun, 
that '-he introduces a new word of his own, viz., 'compact,' 
as importing the principal idea, and designed to play the 
principal part, and degrades Constitution into an insignifi- 
cant idle epithet attached to compact. The whole then 
stands a Constitutional compact !" He is then particularly 
severe and eloquent upon the supposed outrage perj^e- 
trated on "our American political grammar," in thus de- 
grading " CONSTITUTION " (the capitals are his own) fi-om its 
rightful rank " as a noun substantive." But, after all, the 
plain, simple fact is, that this " new word," as Mr. "Webster 
calls it, was as familiar to the ears of the authors of the 
Constitution as any other in the vocabulary of the great 
Convention of 1787. The terms Constitution and com- 
pact are, indeed, twin words, and convertible in the lan- 
guage of the fathers. 

Though '• the term Constitutional affixes to the word 
compact no definite idea," saya Mr. Webster, and in such 
connection "is void of all meaning," "yet it is ea»j, quite 
easy, to see why the gentleman uses it in these resolutions." 
Now, what is the reason, the deep design, that induces Mr. 
Calhoun to use an epithet " so void of all meaning " ? " He 
cannot open the book ;" says Mr. Webster, " and look upon 
our written frame of government Avithout seeing that' it is 
called a Constitution. This may well be appalling to him." 
We cannot possibly imagine that Mr. Calhoun should, for 
one moment, have been disturbed or alarmed by such a 
discovery or revelation. It is certain that he noAvhere 
betrays the least symptom of dismay at "the appalling" 
consideration that the Constitution is really a Constitu- 
tion. That " noun substantive " seems to have inspired 
him Avitli no sort of terror whatever. On the contrary, 
it aj^pears to sit as easily on his political faith and to flow 
as familiarly from his lips as any other word in the lan- 

*Speech, Feb. 16, 1838. 



24 IS DAVIS A TRAITOR? 

giiasre. We can imagine, however, why the Northern 
States should wish to get rid of both the idea of a compact 
and of the word ; why the powerful should wish to oblit- 
erate and erase from the tablets of their memory every 
recollection and vestige of the solemn compact or bargain 
into which they had entered with the weak, but which 
they have never observed in good faith. 

It is perfectly certain that Mi*. Webster's horror of the 
term compact, as applied to the Constitution, is of com- 
paratively recent origin. It was wholly unknown to the 
fathers of the Constitution themselves. Mr. Grouverneur 
Morris, it is well known, was one of the most celebrated 
advocates for a strong national government in the Con- 
vention of 1787 ; and yet, in that assembly, he used the 
Avords — '-He came here to form a compact for the good of 
America. He was ready to do so with all the States. He 
hoped and believed that all would enter into such a com- 
pact. If they would not, he would be ready to join with 
any States that would. But as the compact was to be vol- 
untary, it is in vain for the Eastern States to insist on 
what the Southern States Avill never agree to."* Thus, 
this celebrated representative of the State of Pennsylva- 
nia, and staunch advocate of a strong national government, 
did not hesitate to call the Constitution a comjjact into 
which the States were to enter. Indeed, no one, at that 
early day, either before the Constitution was adopted or 
afterwards, hesitated to call it a compact. 

Mr. Gerry, the representative of Massachusetts, says, 
'' If nine out of thirteen (States) can dissolve the compact, 
six out of nine will be just as able to dissolve the new one 
hereafter." Here again the new Constitution is called a 
compact. 

"In the case of a union of people under one Constitu- 
tion," saj'S Mr. Madison, while contending for the ratifica- 
tion of the ncAV Constitution by the people, "the nature of 

* " Madison Papers," p. 1081-2. 



^ 



IS DAVIS A TRAITOR? 25 

the pact has always been understood to exclude such an 
interpretation."* Thus, in the Convention of 1787, Mr. 
Madison called the Constitution a compact; a word which 
he continued to apply to it during the whole course of his 
life. 

In the celebrated resolutions of Virginia, in 1798, Mr. 
Madison used these words, "That this assembly doth 
explicitly and peremptorily declare, that it views the 
powers of the Federal Government as resulting from the 
compact, to which the States are parties." Again, in his 
almost equally celebrated letter to Mr. Everett, in 1830, he 
calls "the Constitution" "a compact among the States in 
their highest sovereign capacity." In the same letter Mr. 
Madison speaks of.the States as "the parties to the Con- 
stitutional compact;" using the very expression which is so 
offensive to Mr. Webster's new "j)olitical grammar." 
Nay, it was only three years before, in the great debate 
n Foote's resolutions, that Mr. Webster himself had, like 
every or e else, spoken of the Constitution as a compact, as 
a bargain which was obligatory on the parties to it. "It, 
is the original bargain," says he, in that debate; "the com- 
pact — let it stand; let the advantage of it be fully enjoyed. 
The Union itself is too full of benefits to be hazarded in 
propositions for changing its original basis. I go for the 
Constitution as it is, and for the Union as it is." Nor is 
this all. He there indignantly repels, both for "iiimself / 
and for the North," "accusations w^nich imj)ute to us a I 
disposition to evade the Constitutional com23act."s<jret, in 
the course of three short years, he discovers that there is 
no compact to be evaded and no bargain to be violated! 
All such trammels are given to the Avinds, and Behemoth 
is free ! How sudden and how wonderful this revolution - 
in the vieAvs and in the vocabulary of the great orator of 
New England !f 

* Madison Papers, p. 1184. 

fThe great niind of Mr. Webster was in general more like the 
3 



26 IS DAVIS A TRAITOR? 

This language, in which the Constitution is called a com- 
pact, is not confined to Morris, and Gerry, and Madison, 
and the Webster of 1830. w4lr. Chief Justice Jaj^pf the 
.Sui^reme Court of the Union, in the case of '\Chisholni vs. 
Stateof^ Georgia," expressly declares that ' the Cflnstitu; 
"M9V, Q,f the United States is a eonipact.'^'L/''Our Constitu- 
tion of the United States," says John Quincy Adams, the 
sixth President of the Eepubhc, "and all our State Consti- 
tutions, have been voluntary compacts, deriving all their 
authority from the free consent of the parties to them." 
The Yirginia Eesolutions of 1798, already referred to as 
expressing the opinion of Mr. Madison, assert that "Vir- 
ginia views the powers of the Federal Government as 
resulting from the compact to whicL the States are par- 
ties." Again, in the Yirginia Report of 1800, it is said, 
"The States being parties to the Constitutional compact," 
&c. Edmund Pendleton, President of the ratifj^ing Con- 
vention of Virginia, in 1788, in the course of his argument 
in favor of the new Constitution, says, " This is the only 
Government founded in real compact."| Judge Tucker, 
in his commentaries on Blackstone, repeatedly calls the 
Constitution in question "a compact between the States" 
of the Union. The third President of the United States, 

ocean in repose than in action ; and, as is well known, his habitual 
indolence often induced him to rely on others for political informa- 
tion. No one who will attentively compare his speech of 1833 with 
book III., chap. 3, of Story's "Commentaries on the Constitution," 
can be at any loss to account for the origin of his "new political 
grammar," his "new rules of syntax," and his " new vocabulary." 
If he applies these epithets to the doctrines of Morris, _ and_ Gerry, 
and Madison, it is because old things have become new with him, and 
new things old. The secret of this revolution will be found, as we 
shall soon prove, in the work of Mr. Justice Story, which work was 
not written in 1830. Indeed it was not published until 1833 ; but 
then the first volume, containing book IIT., chap. 3, was prepared, if 
not printed, before trhe speech of Mr. Webster, with whom the author 
was on the most intimate terms. It would have been well for the 
fame of Webster, in the eye of posterity, if he had more carefully ex- 
amined such a question for himself. 

t 3 Call. R. p. 419. 

X Elliot's Debates, vol. iii., p. 57. 



IS DAVIS A TRAITOR? 2^ 

as well as the sixth, Thomas Jefferson as well as John 
Quiney Adams, considered the Constitution '' a compact." 
"The States," says Jefferson, "entered into a compact, 
which is called the Constitution of the United States.* 
The Convention of Massachusetts, which was called to 
ratify the Constitution of the United States, was, if possi- 
ble, still more emphatic and decided in the expression of 
the same opinion. "Having impartially discussed, and 
fully considered," say they, " the Constitution of the United 
States of America," we acknowledge, "with grateful 
hearts, the goodness of the Supreme Euler of the Universe 
in affording the people of the United States an opportu- 
nity, deliberately and peaceably, without fraud and sur- 
prise, of entering into an explicit and solemn compact with 
each other, by assenting to and ratifying a new Constitu- 
tion," &c. Yet, in the face of all these high authorities, 
and of a hundred more that might be easily adduced, run- 
ning from James Madison in the Convention of 1787 to 
Daniel Webster in the gi'eat debate of 1830, and embracing 
the lights of all sections and of all parties, it is asserted by 
this celebrated statesman, though certainly not as a states- 
man, that the term compact, as ajDiilied to the Constitu- 
tion, is "a new word," is a part and parcel of "the uncon- 
stitutional language," of the "new vocabulary," which has 
been invented to obscure the fundamental principles of the 
Government of the United States, and to justify secession ! 
Can posterity admire such an exhibition of his powers! 
So far, indeed, is this from being a new mode of speech, 
that it is one of the most familiar words known to the 
fathers of the Constitution itself, or to its more early 
expounders. Even the Federalist, in submitting the Con- 
stitution to the people, sets it before them as "the com- 
pact. "f "The man," says Mr. Webster, "is almost untrue 
to his country who calls the Constitution a compact." It 

* Correspondence. Vol. iv,, p. 415. 
t No. XXXIX. 



28 IS DAVIS A TRAITOR? 

were, indeed, much nearer the truth to say that the man 
is not only almost but altogether untrue to himself, as well 
as to the most solemn records of his country, who can 
assert that the term compact, as applied to the Constitu- 
tion, is "a new word," or the exponent of a new idea. 

The arguments of Mr. Webster to prove that the Con- 
stitution is not a compact, are, if possible, as unfortunate 
as his assertions. If words be not things in realitj^, as 
well as in effect, then it will be found that his arguments 
possess an exceedingly small value. There are two words, 
in particular, in the use of which he displays far more of 
rhetorical legerdemain than of rigid logic. These are the 
two words "compact" and "Constitution." 

No one pretends, for a moment, that every compact is a 
Constitution. There are compacts about soap and candles, 
about pepper and calicoes, or some such trifling thing, 
which no one would call a Constitution. It is only when 
a compact has for its object the institution or organiza- 
tion of a political society, or a civil government, that it is 
properly denominated a Constitution. Hence, in the ordi- 
nary acceptation of the words, compact falls far below the 
high-sounding noun substantive Constitution; a cii'cum- 
stance of which any rhetorician may, if he choose, very 
easily avail himself Mr. "Webster has done so, and that, 
too, with no little popular effect. " We know no more of a 
Constitutional compact between sovereign powers," says 
he, "than we do of a Constitutional indenture of partner- 
ship, a Constitutional deed of conveyance, or a Constitu- 
tional bill of exchange. But we know what the Constitu- 
tion is," &c. Perhaps we do, and perhaps we do not ; that 
is the very point in dispute. But certain it is, that if we 
do know what the Constitution is we need not seek to illus- 
trate its nature or to exhibit its history by any such decep- 
tive use of words. Akin to this sort of reasoning, or rhet- 
oric, is all that is said by Mr. Webster and Mr. Justice 
Story about lowering the Constitution by considering it as 



IS DAVIS A TRAITOR? 29 

a "mere compact," or as "nothing but a compact." It is, 
indeed, something more than a compact, something more 
high, and holy, and honorable. Though in its nature it is 
a mere compact, yet in its object, which is no less than to 
institute or organize a political society, it is the most 
solemn and sacred of all earthly transactions. Such com- 
pacts should not be despised, nor should they be explained 
away, or trampled under foot by the poAverful; they involve 
the destiny of millions. 



CHAPTEE YI. 

The ConsiUution of 1787 a Compact. 

"A Constitution," says Mr. "Webster, "is certainly not a 
league, compact, or confederation, but a fundamental law. 

Do we need to be informed in this country what a 

Constitution is? Is it not an idea perfectly familiar, defi- 
nite, and well settled? TV"e are at no loss to understand 
what IS meant by the Constitution of one of the States ; 
and the Constitution of the United States speaks of itself 
as being an instrument of the same nature." Now it is a 
very remarkable fact that Alexander Hamilton was just as 
clearly and decidedly of opinion that the Constitution of a 
State is a compact, as Mr. Webster was of the opposite 
notion. Thus, says he, in relation to the Constitution of 
New York, "The Constitution is the compact made 
between the society at large and each individual. The 
society, therefore, cannot, without breach of faith and 
injustice, refuse to any individual a single advantage which 
he derives under the compact, no more than one man can 
refuse to perform an agreement with another. If the com- 
munity have good reason for abrogating the old compact 
and establishing a new one it undoubtedly has a right to 
do it ; but until the compact is dissolved with the same 
solemnity and certainty with which it was made, the 
society, as well as individuals, are bound by it."* Indeed, 
this idea, that the Constitution of an American State is a 
compact, made and entered into, was far more familiar to 

* Hamilton's Works, vol. ii., p. 322. 



IS DAVIS A TRAITOR? 31 

Alexander Hamilton and to his age — the age of the Con- 
stitution itself — than the contrary notion was to Mr. AYeb- 
ster and to his school. 

The Constitution of Massachusetts not ojilj calls itself a 
compact, but the people therein acknowledge, with grate- 
ful hearts, that Providence has afforded them an opportu- 
nity of entering into this "original, explicit, and solemn 
compact." The same State, as we have seen, in her ordi- 
nance of ratification, makes the same acknowledgment of 
the goodness of the Supreme Euler of the Universe for 
affording the people of the United States an opportunity 
of entering into "an explicit and solemn compact by 
assenting to, and ratifying a new Constitution." Now, 
both Story and Webster lay great stress on the fact that 
the Constitiition of the United States does not call itself a 
compact. But here they have a Constitution, and it is that 
of their own State, which calls itself an explicit and solemn 
compact — and how do they receive this language? There 
is not, perhaps in all literature an attempt more awkward, 
or a failure more signal, to explain away the clear and 
unequivocal language of a written instrument, than is here 
exhibited by these two great sophists. It deserves a most 
especial notice. 

Mr. Justice Story first gets away from the plain language 
of the instrument, and then calls around him the darkness 
of one of the very darkest metaphysical theories of Europe, 
which he introduces to our notice, however, by a very just 
remark. "Mr. Justice Blaekstone," says he, "has very 
justly observed that the theory of an original contract 
upon the first formation of society is a visionary notion." 
Granted; but what has this to do with the Constitution of 
Massachusetts? Every Constitution we admit is not a 
compact, any more than every compact is a Constitution. 
Most Constitutions have indeed grown, and only a few in 
these later ages of the world have been made. It has been 
the boast of America, and of Virginia especially, that she 



32 IS DAVIS A TRAITOR? 

was the first in the history of mankind to make a complete 
Constitution, to reduce it to writing, and, in the name of 
the people in Convention assembled, to adopt and sign it 
for the government of themselves and their posterity. By 
those authors, such as Blackstone, and Paley, and Hume, 
who reject the theory of an original contract as "a vision- 
ary notion," as having no foundation in history or in fact, 
it is not denied, but expressly admitted, that a people 
might, if they chose, enter into such a compact. Paley, in 
spite of his opposition to the theory of the social compact, 
admits that something of the kind has been entered into in 
America. "The present age has," says he, "been witness 
to a transaction which bears the nearest resemblance to 
this political idea (that of an original compact) of any of 
which history has preserved the account or memory. I 
refer to the establishment of the United States of North 
America. We saw the people assembled to elect deputies 
for the avowed purpose of framing the Constitution of a 
new empire. We saw this deputation of the people delib- 
erating and resolving upon a form of government, erecting 
a permanent legislature, distributing the functions of sov- 
ereignty, establishing and promulgating a code of funda- 
mental ordinances which were to be considered by suc- 
ceeding generations, not merely as acts and laws of the 
State, but as the very terms and conditions of the Confed- 
eration." Indeed, Paley does not doubt that it was a com- 
pact ; he only seems to question whether it may be called 
original, since "much was pre-supposed." For, "in settling 
the Constitution," says he, "many important parts were 
presumed to be already settled. The qualifications of the 
constituents who were admitted to vote in the election of 
members of Congress, as well as the modes of electing the 
representatives, were taken from the old forms of govern- 
ment." It is true that, in framing the Constitution of the 
Federal Union, these things were adopted from the State 
Governments; but if this prevented the compact from 



IS DAVIS A TRAITOR? 33 

being original it certainly did not keep it from being a 
compact. In fact, these words of Paley refer to the old 
Articles of Confederation, and not to the new Constitu- 
tion, for they were written and published in 1785*, two 
years before the Convention met to frame this new instru- 
ment or plan of government. Both AYebster and Story, 
like all others, admit that the old Articles of Confederation 
were "a compact between the States." 

The question is, whether the Constitution of Massachu- 
setts is an instrument of the same nature, or, in other 
words, whether it is a compact? The more than doubtful 
metaphysical theories of Europe have nothing to do with 
this question. The darkness of those theories is not per- 
mitted either by Webster or Story to obliterate or obscure 
the fact that the Articles of Confederation, or the Constitu- 
tion to Avhich Paley refers, was a compact. Why, then, 
is it brouffht to bear on the Constitution of Massachusetts? 
Is the political history of this country, so widely and so 
amazingly different from that of all others, to be read 
and interj^reted in the light, or rather in the darkness, of 
those vague and visionary theories respecting the origin of 
the governments of the Old World which have not the least 
semblance nor shadow of a foundation in their respective 
histories? The Constitution of Great Bx-itain, for exam- 
ple, has grown ; the Constitution of Massachusetts was 
made. The one is the slow but mighty product of the 
labor of ages ; the other is the creation of yesterday. The 
one is written ; the other is traditional. The most impor- 
tant and beneficent elements of the one resulted from the 
Norman Conquest, and the gradual rise of the lower orders 
in cultivation, in wealth, and in importance. Every pro- 
vision of the other, without a single exception, was framed 
and adopted by the people of Massachusetts in Conven- 
tion assembled. Hence the more than doubtful theories 
respecting the origin and the nature of the one have noth- 

* See Paley' a Life, attached to his works, p. 13. 
3*" 



34 IS DAVIS A TRAITOR? 

ing to do with the interpretation of the plain and 
unquestionable facts of the other. These facts should 
be allowed to speak for themselves, and not to be dis- 
credited or obscured by involving them in the fate of 
any doiibtful or false hypothesis whatever. 

Nor is this all. As there is not the slightest foundation 
in history for the theory of an original contract in rela- 
tion to the governments of Europe, so theorists have been 
forced to adopt the hypothesis of an "implied compact" as 
constituting at once the origin, the basis, and the binding 
authority of civil society. Mr. Justice Story finds this 
idea of an "implied" contract, or consent, in Blackstone ; * 
and he does not hesitate to assert that it is in this sense 
that the Constitution of Massachusetts calls itself a com. 
pact. According to this hypothesis the consent of every 
subject is implied, and this implication is forced upon the 
unwilling. It is an implied consent, even in spite of an 
actual dissent. Did the people of Massachusetts then 
acknowledge, with grateful hearts, that Providence had 
afforded them an opportunity of entering into an " im- 
plied" compact? Did they thus pour forth in their Con- 
stitution devout thanks for a privilege which the}^ could 
not possibly have avoided, and which has been fully 
enjoyed by every subject of everj^ despotic government in 
the world? Did they thank the Supreme Euler of the 
Universe for an opportunity of entering into a forced 
implication, and yet ignorant of their bonds, most foolish- 
ly style it an " original, explicit, and solemn compact ?" 
If we may believe Mr. Justice Storj^, such was precisely 
the absurd and ridiculous farce enacted by the people of 
Massachusetts. 

Mr. "Webster treads in the footsteps of Mr. Justice Storj^ 
" The Convention," says the Massachusetts formula of 
ratification, "having impartially examined and fully con- 
sidered the Constitution of the United States of America, 

* •' Commentaries," vol. i., book iii., chap, iii., p. 298. 



IS DAVIS A TRAITOR? 35 

submitted to ns and acknowledging with gi-atefiil 

hearts the goodness of the Supreme Rnler of the Universe 
in aifording the people of the United States, in the course 
of His providence, an opportunity, deliberately and peace- 
abl}^, without fraud or surprise, of entering into an explicit 
and solemn compact wdth each other, by assenting to and 
ratifying a new Constitution," &c. Now is this the lan- 
guage of an implied or of an explicit and deliberate com- 
pact? Yet in the face of this language Mr. Webster 
asserts that the Convention of Massachusetts and New 
Hampshire merely speak of compact in the sense of "Euro- 
pean writers!" Now, the European writers here referred 
to mean either an explicit or an implied consent. But the 
idea of an explicit consent or compact is rejected by Mr. 
Justice Story and Mr. Webster, as "a visionary notion," as 
w^ell as by Blackstone, Hume, Paley, and a host of others. 
Hence Mr. Webster must be understood to refer to those 
European writers who maintain the hj^^othesis of an 
implied compact. Hence the people of Massachusetts are 
represented by him as being exceedingly grateful for the 
opportunity of freely and deliberately entering into an 
"implied compact," wdiich, however, thej" blindly call "an 
explicit and solemn " one ! They are represented as vol- 
untarily entering into an implied compact, a thing which 
is never made or entered into at all, but is only an impli- 
cation or fiction of law, from which there is no escape ! 

The Constitution, says Mr. Webster, is "certainly not a 
compact." He lays great stress on the fact that it does 
not call itself a compact. Nor do the old Articles of Con- 
federation call themselves a compact ; and yet Mr. Web- 
ster admits that they were "a compact between the 
States." They call ■ themselves, it is tr .e, "a league of 
friendship ;" but then a league of friendship is not, ex vi ter- 
mini, a social compact or a political union. "We speak of 
ordaining Constitutions," says Mr. Webster; "but we do 
not sj^eak of ordaining leagues and compacts." True, 



36 IS DAVIS A TRAITOR? 

because our language is determined by the ordinary and 
more frequent transactions of society. Hence we nat- 
urally speak of making or entering into leagues and com- 
pacts in conformity with the everj^-day use of language. 
But when compacts relate to the institution of a new gov- 
ernment, and when all their terms and articles and stipu- 
lations are agreed upon, then we enter into them by 
ordaining; them as Constitutions. Is not this so? 

Every compact is not a Constitution. But the Articles 
of Confederation, which are admitted to be a compact, 
were a Constitution. This is clear from Mr. Webster's 
own definition. "AVhat is a Constitution?" says he; and 
he replies, it is "a fundamental law." l^ow, most assu- 
redly the articles in question constituted the "fundamen- 
tal law" of the old Union. They are, as we have already 
seen, very properly called by Dr. Paley "a code of funda- 
mental ordinances, which were to be considered by suc- 
ceeding generations not merely as laws and acts " " but 

as limitations of power, which were to control and regu- 
late the future legislation." This is, indeed, the definition 
of a Constitution; and hence Dr. Paley calls those "terms 
and conditions of the Confederation" a "Constitution." 

But on this point there is much higher authority than 
that of Dr. Paley. The "Address of the Annapolis Con- 
vention," penned, as is well known, by Alexander Hamil- 
ton, recommends commissioners to meet at Philadelphia, 
"to take into consideration the condition of the United 
States, and to devise such further provisions as shall 
appear to them necessary to render the Constitution of the 
Federal government adequate to the exigencies of the 
Union."* Again, he says, in the ratifying convention of 
New York, "The Confederation was framed amidst the 
agitation and tumult of society. It was composed of 
unsound materials put together in haste. Men of intelli- 
gence discovered the feebleness of the structure in the 

* " Hamilton'3 Works," vol. ii., p. 339. * 



IS DAVIS A TRAITOR? 37 

first stages of its existence; but the great body of the 
people, too much engrossed with their distresses to con- 
template an}' but the immediate causes of them, were 
ignorant of the defects of their constitution.'"'^' Mr. Madi- 
son also speaks of "the Federal Constitution" under the 
old Confederation. f 

"The Constitution," says Mr. Webster, "speaks of that 
political system which is established as 'the government 
of the United States.' Is it not doing strange violence to 
language to call a league or compact between sovereign 
powers a government?" Is it not, I reply, requiring too 
much of a compact to be both the Constitution and the. 
government? No one pretends that either a compact or 
the Constitution is the government of the United States. 
Mr. Webster himself makes the distinction in the two 
next sentences. "The government of a state," says he, 
"is that organization in which the political power resides. 
It is the political being created by the Constitution or 
fundamental law." Thus the government is created by 
the Constitution; and if a comj^act were both Constitu- 
tion and government, then the creature would be its own 
creator. All I contend for is, that in this particular 
case the compact is a Constitution, and the Constitution 
is a compact. Neither the one nor the other is the gov- 
ernment. The Constitution is neither the executive, nor 
the legislature, nor the judiciary, nor any other conceiva- 
ble functionary of the government of which it is the 
supreme law. 

But the design of Mr. Webster's argument is to prove 
that no government was established by the old articles of 
Union, or under the compact of the Confederation. In 
designating those powers which he deems essential to the 
very existence of a government, he specifies those which 

* Hamilton's Works, vol. ii., p. 445. 

t" Madison Papers." Index, cxi., "Convention to revise the 
Federal Constitution. 587, 617, 619." 



38 IS DAVIS A TRAITOR? 

did not belong to the legislature of the Confederacy, or 
which he supposes did not belong to it; and then he adds, 
"when it ceases to possess this power it is no longer a 
government," and consequently it is doing strange violence 
to language to call it one. 

We have already seen that Alexander Hamilton, in 
speaking of the Confederacy, calls it the "Federal govern- 
ment." "AYe saw the deputation of the people," says Dr. 
Paley, "deliberating and resolving upon a form of govern- 
ment, erecting a public legislature, distributing the func- 
tions of sovereignty, establishing and promulgating a code 
of fundamental ordinances." We cannot open "Curtis's 
History of the Constitution," and turn to the ajDpropriate 
heads, without seeing that he discusses the "Nature of the 
government established by the Confederation,"* or the 
form of the government established by it;"f or without 
perceiving that the same thing is habitually and familiarly 
called a government. Nor can we look into the comment- 
aries of Mr. Justice Story, and cast our eyes over the 
pages in which he treats of the first Confederation, with- 
out discovering that he frequently speaks of the "general 
government,"! or the "national government "§ established 
by it. In the very first sentence of "TAe Federalist" as 
well as in various other sentences of the same work, "the 
existing Federal government" is spoken of just as if no 
one entertained a doubt as to its real nature or its name. 

* Vol. i., chap, vi., p. 142. 

flbid, p. 143. 

jVol. i.. Book II., cliap. i.,p. 180; Book III., chap, ii., p. 280. 

§* Ibid, Book III., chap, ii., p. 260. 



CHAPTEE VII. 

The Constitution of 1787 a Compact. 

Mr. "Webster admits that the Constitution is "founded 
on consent or agreement, or on compact;" meaning no more 
by that word than "voluntary consent or agreement." 
But he denies that it is itself a compact. "The Constitu- 
tion is not a contract," says he, "but the result of a con- 
tract ; meaning no more by contract than assent. Founded 
on consent it is a government proper." Now, Mr. Web- 
ster himself being the judge, the Constitution is not a gov- 
ernment at all; for a government is, says he, "the political 
being created by the Constitution or fundamental law." 
But "founded on consent," not on implied or necessitated, 
but on "voluntary consent," it is a compact proper. Mr. 
Webster is compelled to call the Constitution a govern- 
ment, in direct violation of his own definitions and princi- 
ples, in order to keep from calling it a compact. 

In what manner the Constitution is founded on consent, 
on a deliberate and voluntary consent, Mr. Webster has 
himself told us, only a few pages in advance of the above 
admission. "It is to be remarked," says he, "that the 
Constitution began to speak only after its adoption. Until 
it was ratified by nine States it was but a proposal, the 
mere draft of an instrument. It was like a deed drawn 
but not executed." This is most exactly and perfectly 
true. The Constitution was a dead letter, a powerless and 
inoperative thing, i;ntil the ratification or solemn "volun- 
tary assent" of nine States breathed into it the breath of 



40 IS DAVIS A TRAITOR? 

life. It was from this consent, from this compact of nine 
States, that "the Constitution resulted" as a living or 
an authoritative document. But when the nine States 
assented to that "proposal or mere draft of an instru- 
ment," and ratified the same by signing it, then each and 
every article therein specified and written became an arti- 
cle of agreement between the parties to it. "It was like 
a deed drawn but not execiited." But when executed or 
ratified it was then like a deed signed by the parties; and 
all the written articles thereof became articles of agree- 
ment between the parties. Thus the Constitution not 
only resulted from the compact of the nine States, but 
became itself the compact; or, in other words, the written 
expression of the terms, the conditions, and the articles 
of the compact. This is what we mean by calling the 
Constitution a compact between the States. And is not 
this the language of truth? 

Now, on what conditions, or in Avhat cases, does such 
voluntary consent become a compact proper? Each of 
the nine States, as it assented to and ratified the Constitu- 
tion, agreed to alf its terms and articles. It agreed to 
forego the exercise of various powers, and to assume vari- 
ous important liabilities, in consideration that eight other 
States would do jn-ecisely the same thing. And it also 
agreed that the j)owers thus delegated by the nine States, 
or conferred on the general government to be erected for 
the common good, should be distributed, exercised, lim- 
ited, and controlled, according to the terms and articles 
of the Constitution. Is not this a compact proper? Have 
we not here mutual promises, each State parting with 
what it possessed, and, in consideration thereof, seeking 
to derive some benefit from the others? If so, then is not 
this a compact in the proper sense of the word? 

The same idea is perfectly expressed by Mr. Webster, 
in the speech before us. "On entering into the Union," 
says he, "the j)eoj)le of each State gave up a part of their 



IS DAVIS A TRAITOR? 41 

own power to make laws for themselves, in consideration 
that, as to common objects, they should have a part in 
making laws for other States." Here is the voluntary 
relinquishment on the one part, and the valuable consider- 
ation on the other. Is not thife a contract proper? If not, 
then have Blackstone, and Kent, and Pothier, and Domat, 
and Story written in vain on the nature and law of con- 
tracts. If not, then indeed may we despair of ever arriv- 
ing at the meaning of any one word in anj' one language 
under the sun. 

It possesses every conceivable attribute of a valid con- 
tract. 1. There were "the parties capable of contract- 
ing" — the States. 2. It is admitted to have been "volun- 
tary." 3. There was "the sufficient consideration" — the 
powers surrendered, and the liabilities incurred. Thus it 
fully answers to every condition laid down by Judge 
Story himself,* as the tests or criteria of a contract proper. 
It bears no resemblance to those imaginary transactions 
which certain European writers have invented to explain 
the origin of their governments, and to give stability to 
their political theories by fastening them, as with anchors, 
to past ages. On the contrary, it is historical and real. 
The time and the manner, the substance and the form, and 
all the stipulations, are written down and known. It was 
deliberately and solemnly entered into yesterday; and it 
is as deliberately and solemnly denied to-day. Such is the 
incurable sophistry of power ! 

The constitution of England is not a compact. There 
is not, in all the history of England, the least intimation 
of the people's having assembled, either by themselves or 
by their representatives, to establish the institution of 
King, or Lords, or Commons. Yet these three powers 
constitute the main features in the government of Great 
Britain. Each power holding the balance between the 
other two, so as to prevent either from gaining the ascend- 

* Conflict of Laws, p. 307. 



42 IS DAVIS A TRAITOR? 

ancy, is what forms the stable equilibrinin of the constitu- 
tion of England. But yet certain parts of the British con- 
stitution are compacts, and are so called by writers who 
reject the theory of a compact as to the whole. According 
to De Lolme and other authors, Great Britain owes her 
admirable constitution to the Norman conquest rather than 
to compact. *'It is to the era of the conqiiest," says he, 
"that we are to look for the real foundation of the English 
constitution." Yet changes and improvements in that 
constitution which, instead of growing, were made by 
competent parties, he calls compacts. Thus, says he, in 
reference to the accession of William III. to the throne, 
^'care was taken to repair the breaches which had been 
made in the constitution, as well as to prevent new ones, 
and advantage was taken of the rare opportunity of enter- 
ing into an original and express compact between king 
and people."* Then, after having specified some of the 
improvements made in the constitution by this compact, 
he adds, "Lastlj^, the keystone was put to the arch by the 
final establishment of the liberty of the press. The Eevo- 
lution of 1689 is, therefore, the third grand era in the his- 
tory of the constitution of England." Again, he says, 
"Without mentioning the compacts which were made with 
the first Kings of the Norman line, let us only cast our 
eyes on Magna Charta, which is still the foundation of 
English liberty, f being the great compact by which the 
Kings, the barons, and the people | entered into certain 
mutual stipulations respecting the prerogatives of the 
Crown and the rights of the subject." 

Thus the English revolution, like our own, was followed 
by a compact ; and the only difference was thtit the com- 
pact of 1688 was in addition to an old constitution, whereas 
the compact of 1788 was a constitution in toto eelo. C'o c Fy> . 

* De Lolme on the Constitution, p. 48. 

t Ibid, p. 287. 

X I say the people, because those who followed the barons at Run- 
nymede demanded and obtained stipulations in favor of the people 
■Bs well as in favor of their leaders. 



IS DAVIS A TRAITOR? 43 

Locke, the great popular champion of the theory of the 
social compact, was then in the' ascendant in the United 
States, as he was with the Whigs in England. That 
theory, though exploded now, was then almost universally 
received in America. That is to say, exploded by showing 
that there is no historical evidence of any such compact at 
the origin of the governments of the Old World, and that 
the alleged transaction was fictitious.* But the fiction, 
which had been only partially realized at the end of revo- 
lutions, and not at the beginning of societies, became a 
\ fact in the hands of American legislators .^/ In the language 
of Governor Morris, they camo to the convention of 1787 
'Ho make a compact," and^hcy made oaS- 4.-^^^^*^ ^^^'^^ draft 
of a coinpaot. m'c arc told, calls itself a constitution, and 
not a compact at all. Yery well. Suppose it had called 
itself a compact, even an "original, explicit, and solemn 
compact," would it not have been just as easy for Mr. 
Justice Story to aflSrm that this only meant an "implied 
contract," as it was for him to do the same thing in regard 
to the Constitution of Massachusetts ? But although the 
convention of 1787 did not, on the very face of the Consti- 
tution, call itself a compact, yet in the letter which, by 
their "unanimous order," was dispatched with that instru- 
ment to the President of Congress, they use the same lan- 
guage in describing the nature of the transaction, that is 



* This is the ground taken, and unanswerably maintained by Hume, 
in his essay on the "Original Contract." Essays," vol. i., Essay 
12. The theory of Rousseau is rejected by M. Comte {" Theorie de 
Legislation," liv. i. c. 2) on the same ground. Sir William Temple 
(" Works," vol. ii. pp. 37. 46) had previously rejected the doctrine 
of the ''Social Contract." Kant, the philosopher of Konigsberg, 
treats it as a frivolous and impractical notion. Heeren ("On Polit- 
ical Theories," p. 2.39) says that a social contract neither was, nor 
could have been, actually concluded. Stahl (" Philosophy of Rights," 
vol. ii., partii., p. 142) rejects the doctrine as visionary. Godwin, 
likewise (" Political Justice," book iii., c. 2 and 3) rejects it. The 
doctrine of the social compact is subjected to an exhaustive analysis 
by Mr. Austin ("Prov. of Jurisprudence," 331 — 71), and triumph- 
antly refuted. Jeremy Bentham likewibe rejects the same hypothesis 
as visionary. 



44 IS DAVIS A TRAITOR? 

employed by Sidney, and Locke, and Eousseau to define 
"the social contract," as we shall hereafter see. 

Although Mr. Justice Story endeavors to bring discredit 
on the "explicit and solemn" compacts of the New World, 
by identifying them with the vague and visionary theories 
of the Old, yet he is perfectly aware of the difference 
between the fact in the one case and the hyjjothesis in the 
other, whenever it suits his purpose to use such knowl- 
edge. Thus, he says, in relation to his own Pilgrim 
Fathers: — "Before their landing they drew up and signed 
a voluntary compact of government, forming, if not the 
first, at least the best authenticated case of an original 
social contract for the establishment of a nation, which is 
to be found in the annals of the world. Philosophers and 
jurists have perpetually resorted to the theory of such a 
compact, by which to measure the rights and duties of 
governments and subjects; but for the most part it has 
been treated as an effort of imagination, unsustained by 
the history or practice of nations, and furnishing little of 
solid instruction for the actual concerns of life. It was 
little dreamed of, that America should furnish an example 
of it in primitive and almost patriarchal simplicity."* 
Thus Massachusetts has taken the lead of all the States in 
the world in the making of social compacts and also in 
the breaking of them. This last point will, hereafter, be 
most fully illustrated and proved. 

The original draft of the Constitution of Massachusetts 
was drawn up by John Adams, the second President of 
the United States, and he certainly entertained no doubt 
that he was drawing up an "explicit and solemn compact," 
or reducing the theory of European writers to practice. 
"It is," says he, "Locke, Sidney, Eousseau, and DeMably 
reduced to practice."f All these celebrated authors on the 
"social contract" reduced to practice! But it is all in 

* " Story on the Constitution, Book i., chap, iii., p. 37. 
t John Adams's Works, Vol. iv., p. 216. 



IS DAVIS A TRAITOR? 45 

• 

vain. For if the fiction is reduced to fact it is only that 
the fact may be again reduced to fiction. Massachusetts 
keep her bargains! Even her most gifted sons, her Storys 
and her "Websters, exert all their genius and exhaust the 
stores of their erudition to explain away and reduce to a 
mere nullity her most solemn social compacts, both State 
and Federal! The theory becomes a fact, and this fact 
calls itself "an original, explicit, and solemn compact." 
But then, as interest or power dictates, the fact is explained 
away, and there ends all the solemn farce. 

"Majorities, in a democracy, do not rely on Constitu- \ 
tions, do not care for Constitutions. They rely on num- I 
bers and the strong arm." They spurn, with more than 
imperial scorn, the limitations and restraints which writ- 
ten Constitutions or judicial decisions would impose on 
their sovereign will and pleasure. They respect, such 
j)aper checks, such, dictates of reason and justice, just about 
as much as the raging billows of the ocean respected the 
line which Canute drew upon its shores. In the strong- 
language of De Tocqueville, nothing can restrain them from 
crushing whatever lies in their path. This has been most 
emphatically and pre-eminently true of the jSTorthern 
majority in every instance in which it has gained the 
ascendency in the grand Democratic Eepublic of the IS'ew 
World. Cruel as death, and inexorable as the grave, it ] 
has moved right on to its object, regardless of the out- i 
cries and "complaints of those whom it crushes upon its I 
path."* Like every other despotic poAver, it must, of 
course, have its sophists, its sycophants, and flatterers, to 
persuade it that it can never violate its compacts, because 
it has never made any compact to be violated. 

Its character is most perfectly described by a great 
Northern politician ; by one who, indeed, as a distinguished 
member of the Convention of 1787, helped to frame the 
Constitution of the United States. What, then, is it in 

* De Tocqueville' s " Democracy in America." 



/ 



46 IS DAVIS A TRAITOR? 

• 

his view ? Is it the wild beast of Plato ? Is it " the armed 
rhinoceros or the Hyrean tiger?" In more respectful lan- 
guage he simply calls it "the legislative lion ;" hut yet, 
seeming to know its nature, as Falstaff knew the true 
Prince, by instinct, he paints it beforehand with the pen- 
cil of a master,^' But, after all," says he, "what does it 
signify that mei/skould have a wantten Constitution, con- 
taining unequivocal provisions and limitations ? The leg- 
islative lion will not bo entanolcd in the meshes ef a logi- 

*- , , ill! ~ ■ ■ . 

cal net. Legislation will always make the power which it 

wishes to exercise, unless it be so arranged as to contain 
within itself the ^ufficient check. .Attempts to restrain it 
from outrage, hy other means, will only render it the 
more outrageous. The idea of binding legislators by 
oaths is puerile. Having sworn to exercise the powers 
granted, according to their true intent and meaning, they 
will, when they feel a desire to go further, avoid the 
shame, if not the guilt of perjury, by swearing the true 
intent and meaning to be, according to their comprehen- 
sion, that, which suits their purpose."* Here, in one sen- 
tence, we have the whole history of the ISTorthern power 
in advance ; with all its hypocrisy, violation of oaths, and 
sovereign contempt of its most solemn compacts and 
engagements. Is it any wonder, then, that the writer 
should have looked forward, with such sad foreboding, "to 
the catastrophe of the tragico-comical drama," f in the 
earliest stages of which he himself had acted so consj)icu- 
ous a partT'^yL 

* "Life and Writings of Governor Morris," vol. iii., p. 323. 
t Ibid., p. 203. 



CHAPTEE YIII. 

Tlie Constitution of ItST a Cmnpact between the States.— The Facts of the Vase. 

In discussing the question of the preceding chapters, 
whether the Constitiition was a compact, I introduced 
much matter which incidentally showed that it was a 
compact between the States. In like manner, I shall, in 
proving that the States are the parties to the Constitu- 
tion, produce much additional evidence that it is a com- 
pact. In order to show that the States are the parties to 
the constitutional compact, let us consider — 1. The facts 
of the case; 2. The language of the Constitution itself; 
and 3. The views of Hamilton, Madison, Morris, and other 
framers of the Constitution ; and 4. The absurdities flow- 
ing from the doctrine that the Constitution is not a corn- 
pact between the States, but was ordained hy the people 
of America as one nation. 

1. The facts of the ease. "It appears to me," saj^s Mr. 
Webster, "that the plainest account of the establishment 
of this government presents the most just and philosophi- 
cal view of its foundation." True,. very true. There is, 
indeed, no proposition in the celebrated speech of Mr. 
Webster, nor in any other speech, more true than this ; 
and besides, it goes directly to the point. For the great 
question which Mr. Webster has undertaken to discuss 
relates not so much to the superstructure of the govern- 
ment as to "its foundation." 

This is the question : How was the Constitution made 
or ordained, and on what does it rest ? Bearing this in 



48 IS DAVIS A TRAITOR? 

mind, let us proceed to consider, first, his j)lain account of 
the establishment of the government of the United States, 
and then the arguments in favor of his position. 

First, let us consider, item by item, his plain account. 
"The people of the several States," says he, "had their 
separate governments, and between the States there also 
existed a Confederation." True. "With this condition 
of things the people were not satisfied, as the Confedera- 
tion had been found not to fulfil its intended objects. It 
was pi'oposed, therefore, to erect a new common govern- 
ment, which should possess certain definite powers, such 
as regarded the property of the people of all the States, 
and to be formed upon the general model of American 
Constitutions." This is not so plain. It seems partly 
true and partly false. We are told that the people had 
discovered the defects of the Confederation, and were con- 
sequently not satisfied with it. Alexander Hamilton, a 
contemporary witness, tells a very different story. "Men 
of intelligence," says he, " discovered the feebleness of the 
structure" of the Confederation; "but the great body of 
the people, too much engrossed with their distresses to 
contemplate any but the immediate causes of them, were 
ignorant of the defects of their Constitution."* It was 
only "when the dangers of the war were removed," and 
the "men of intelligence" could be heard, that the people 
saw "what they had suifered, and what they had yet to 
suffer from a feeble form of government. "f 

"There was no need of discerning men," as Hamilton 
truly said, "to convince the i)eople of their unhappy con- 
dition." But they did need to be instructed respecting 
the causes of their misery. So far was the great body of 
the people from having discerned for themselves the causes 
of their troubles that Mr. Madison ascribes his ability to 
make this discovery to his peculiar situation. "Having 

* Works, vol. ii., p. 445. 
t Ibid. 



IS DAVIS A TRAITOR? ^-, 

served as a member of Congress," says he, "through the 
period between March, 1780, and the arrival of peace, in 
1783, I had become intimately acquainted w th the public 
distresses, and the causes of them." Thus enlightened, 
and, under the dreadful aspect of aifairs, " sympathizing 
in the alarm of the friends of free government at the 
threatened danger of an abortive result to the great, and 
perhaps last, experiment in its favor," Mr. Madison could 
not be "insensible to the obligation to aid as far as he 
could in averting the calamity."* Hence he acceded to 
the desire of his fellow-citizens of the county, and became 
a member of the legislature of Virginia, "hoping," as he 
declared, "that he might there best contribute to incul- 
cate the critical posture to which the revolutionary cause 
was reduced, and the merit of a leading agency of the 
state in bringing about a rescue of the Union, and the 
blesi^'ngs of liberty staked on it, from an impending catas- 
trophe." 

It thus appears that the first step which, in the end, led 
to a change of the Federal Government, was not a popu- 
lar movement; it did not originate with the people; it 
sprang from the brain of James Madison, and manifested 
itself in the action of the legislature of Virginia. But 
what was this action ? Was it to ch^ige the form of the 
Federal Government ? Far from it.'S ^he resolution of ih &. 
\ ^V'giiiT?!-'^ legislature, drawn up by Mr. Madison, and intro- 
duced by ^Ir. TvliT. t mrrch- auiiinuts ronimissionors to 
meet suc h coimrii^sioiifrs as may be a]ipointed by the other 
States^" to take into consideration the trade of the United 

States," and ■■ to consider how far a uniform system in 

•■■•^^■■ii^^^-— -- _^ II _ - _ •- 

thei r commercial regulations maj'be" necessary to their 

* Madison Papers, p. 693. 

t The resolution was introduced by Mr. Tyler, rather than its 
author, because, '"having never served in Congress," he "had more 
the ear of the house than those whose services there exposed them to 
an imputable bias." Madison Papers, p. 696. So great was the 
jealousy of the Federal Congress in those days. 
4 



48 IS DAVIS A TRAITOR? 

■ ' common interest and j)ermanent harmony," Itjuggests 
no"c^angFw£atever in the Federal government, except in 

[ ""so far_ aa Jib i 8 m a v^fiTImpleXS X. uiujpi-m. sjs.tem^coin- 

\ mercial regulationss^ 

This resolution, a/ ev^ry one knows, led to the Annapo- 
lis Convention, which took the next great step towards the 
formation of the new Constitution. Nor was this a popu- 
lar movement, y^ t originated in the Ibrain of Ale xander 
HamiltoiK^n the address 'oi''IT[iat conventiOri, says, 



'•'j-'nat thfe exj^resa terms of the power to your commis- 
sioners supposing a deputation from all the States, and 
having for its object the trade and commerce of the United 
States, your commissioners did not conceive it advisable to 
proceed on the business of their mission under the circum- 
stances of so partial and defective a representation." The 
address then proceeds to recommend " a general meeting 
of the States in a future Convention," with powers extend- 
ing to "other objects than those of commerce." "They 
are the more naturally led to this conclusion," say the 
Convention, "as in their reflections on the subject they 
have been induced to think that the power of regulating 
trade is of such comprehensive extent, and will enter so 
far into the gi'and system of the Federal government, that 
to give it efficacy, and to obviate questions and doubts 
concerning its jjrecise nature and limits, may require a 
correspondent adjustment in other parts of the Federal 
system." 

"That there are important defects in the system of the 
Federal Government," continues the address, "is acknow- 
ledged by the acts of those States which have concurred 
in the present meeting. That the defects, upon a closer 
examination, may be found greater and more numerous 
than even these acts imjDly, is at least so far probable, 
from the embarrassment which characterizes the present 
state of our national aflFairs, foreign and domestic, as may 
reasonably be supposed to merit a deliberate and candid 



IS DAVIS A TRAITOR? 51 

discussion, in some mode which will unite the sentiments 
and counsels of all the States." 

In compliance Avith this recommendation of '-a general 
meeting of the States in a future convention," twelve 
States met at Philadelphia on the 14th of May, ITgL with 
instructions to join "in devising and discussing all such 
alterations and further provisions as may be necessary to 
render the Federal Constitution adequate to the exigencies 
of the Union."* "The recommendation was received by 
the legislature of Virginia," says Mr. Madison, "which 
happened to be the first that acted on it, and the example 
of her compliance was made as conciliatory and impressive 
as possible." ts ^hus it was Alexan der Hamilton, as the 
jnaster_spirit ^f the Annapolis Convention, who first con- 
-Ceived th e idea of a general convention to revise and amend 
the Fede icil (.iovernine.nt, and it was James Madison, as 



the great riilini'- irenius of the legislature of Yiro-inia, who 
_gave the tirst-Aiitl-aiioat powerfiil impulse to that concep- 
I tion. , The great mass of the people had very little to do 
with^rhe movement. 

"A resort to a general convention," says Mr. Madison, 
"to remodel the Confederacy, was not a new idea." | He 
then mentions five persons by whom this idea had been 
entertained; namely, Pelatiah Webster, Colonel Hamilton, 
R. H. Lee, James Madison, and JSToah Webster. None of 
these, however, go beyond the idea of Hamilton, " to 
strengthen the Federal Constitution ;" or of Madison, to 
supply its defects. § But if this had been a popular move- 

* Madison Papers, p. 706. These are the words of the resolution 
of Virginia ; the instructions of the other States were equivalent to 
these. 

flbid, p. 703. t Madison Papers, 706. 

§ The two Websters. Pelatiah and Noah, do show some originality. 
The one, in 1781. seeing that Congress had not sufiBcient authority 
'' for the performance of their duties." (though he does not tell us 
what duties they had to perform, except to exercise the authority 
entrusted to them,) suggests the plan of a Continental Convention, 
for the express purpose, "among other things, of enlarging tho 



52 IS DAVIS A TRAITOR? 

ment, Mr. Madison could easily have found, during the 
period of three years, more than five candidates for the 
once hotly-contested honor of having conceived the first 
idea of a Convention to remodel the Confederacy or to 
amend the Federal Constitution. 

The plain truth is, that it was Alexander Hamilton, and 
not the people who, grappling with the vast and compli- 
cated idea of a regular commercial system, saw the changes 
which such a system must introduce into the Federal Gov- 
ernment. Hence it was Alexander Hamilton, and not the 
people, who became dissatisfied with the Confederation as 
it was, and sought to have its Constitution remodeled. 
" He was the first," as the historian of the Constitution 
has truly said, " to perceive and develop the idea of a real 
union of the people of the United States." f 

It was not proposed then, as Mr. Webster alleges, and 
no one ever proposed, to set aside the Confederation in 
order to establish a government. The Confederation was 
itself a government. This contrast between the Confed- 
eration and a government, as things essentially different 
in kind, which pervades the whole of Mr. Webster's speech, 
and which is even interwoven with his "■ plain account of 
the establishment of the government" of the United States, 
is purely a hypothesis of his own. Hamilton and the Con- 
vention of Annapolis repeatedly speak, as we have seen, 
of " the Federal Constitution " and " the Federal Govern- 
ment." Madison and the legislature of Virginia use 
precisely the same language in reference to the same 
objects. Even Pelatiah Webster, in this respect, far less 
original than his great namesake, speaks of the " Consti- 

duties of their Constitution." The other, in 1784. fished for a Gov- 
ernment "which should act, not on States, but directly on individ- 
uals. If this idea really originated with Noah Webster, then there 
are many -who will think that his political pamphlet cancelled the 
obligations which his spelling book conferred on the country. Mr. 
Webster was also original in his orthography. 

t " History of the Constitution of the United States," by Curtis, 
Tol. i, p. 413. 



IS DAVIS A TRAITOR? 53 

tution " of the Federal Government. The Convention of 
'87, also call the old Confederation " the Federal Govern- 
ment."* 

But we must proceed to the next item of Mr. Webster's 
plain account. " This proposal," says he, " was assented 
to, and an instrument was presented to the people of the 
several States for their consideration. They approved it, 
and agreed to adopt it, as a Constitution." True, as far as 
it goes. But when Mr. "Webster asks, " Is not this the 
truth of the whole matter?" we are bound to answer that 
this is either not the truth of the whole matter, or it is not 
the Avhole truth of the matter. On the contrary, it omits 
precisely those great truths which shed the most light on 
the foundation of the government of the United States. 
One might well suppose, from the above statement, that 
the people of the several States had jointly approved the 
Constitution, and jointly ordained it as a Constitution. 
But however essential this view may be to the theory of 
Mr. Webster — and his theory is as baseless as the fabric of 
a vision without it — it has not the shadow of a foundation 
in the facts of history. 

The plain and unquestionable fact is, that each State 
adopted or rejected the Constitution for itself, and for itself 
alone. No twelve States could by their united action lay the 
bonds of the new Constitution on the thirteenth State. This 
was universally conceded. The little State of Rhode Island 
stood aloof; and though her conduct was reprobated, no 
one denied her right. Neither all the other States com- 
bined, nor all the people of America, had the shadow of an 
authority to constrain her action, or to control her own 
free choice. No power on earth could touch the priceless 
pearl of her sovereignty in the affair. No one presumed 
to question her right to decide for herself. This right was 
then as clear as the sun, and all ejeB recognized it. And 
this was true, not only in relation to Ehode Island, but 

* Madison Papers, pp. 730-35, etc. 



54 IS DAVIS A TRAITOR? 

also to each State in the Confederacy. For in the act of 
re-union each State was perfectly free and independent, 
unconti'olled and uncontrollable by any power upon earth. 

But this fact, which is far too recent and too well 
authenticated to be denied by any one, goes to the very 
foundation of the government of the United States, and 
shows that its Constitution rested on a federal, and not on 
a national act. It shows that it was a union of States, 
effected by the several act of each State, and not the union 
of all the individuals in America, acting as one political 
community. 

All this was known to Mr. Webster. No man with the 
least political information or reading could have remained 
ignorant of it. But still he glossed it over, or kept it in 
the far distant background, as unsuited to his hypothesis 
and to the logic of the I^orthern power, that the Constitu- 
tion was ordained by ''the people of the United States in 
the aggregate," and not by the people of the United States 
in the segregate. And yet, after he has given his one- 
sided, superficial, and unfair statement, he calls it " a plain 
account," and asks, " Now, sir, is not this the truth of the 
whole matter ? And is not all that we have heard of a 
compact between Sovereign States the mere effect of a 
theoretical and artificial mode of reasoning upon the sub- 
ject ? — a mode of reasoning which disregards plain facts 
for the sake of hypothesis ? " Comment is unnecessary. 

Mr. Webster's "plain account" is, in fact, a gross falsi- 
fication of history. If possible, however, it is surpassed 
by Mr. Motley. This most unscrupulous wi'iter asserts : 
"The Constitution was not drawn up by the States, it was 
not promulgated in the name of the States, it was not rat- 
ified by the States."* Now each and every one of these 
assertions is diametrically opposed to the truth. Strike 
out the little syllable "not" from every clause of the above 
sentence, and it will then express the exact truth. For, 

* Rebellion Record, vol. 1, p. 211. 



IS DAVIS A TRAITOR? 55 

in the first place, as the record shows, it is a plain and 
incontrovertible fact, that the Consttitution was drawn 
up or framed by the States. 

It was drawn np or framed, as every one knows, by the 
Convention of 1787; in which the States, and the States 
alone, were represented. Every iota of the Constitution 
was decided upon, and found a place in that written instru- 
ment, by a vote of the States; gach State having oj^&.JJQ^S^ 
the little State of Delaware, forexampleT^iaving an equal ^ 
vote with New York, Pennsylvania, or Virginia. 'No fact 
should be more perfectly notorious, or well-known, than 
this ; for it stands out everywhere on the very face of the 
proceedings of the Convention, which framed the Consti- 
tution. Thus, for example, "On the question for a single 
Executive; it was agreed to, — Massachusetts, Connecticut, 
Pennsylvania, Virginia, North Carolina, South Carolina, 
Georgia, aye — 7 ; New York, Delaware, Maryland, no — 
3."* In like manner, every other item of the Constitution 
was decided upon, and the whole instrument formed, by a 
vote of the States; acting as separate, indej)endent, and 
equal bodiesjCjJLQW, in the face of such a fact, could Mr. 
Motley so boldh^- assert, that the Constitution was noU""""" 
drawn up, or framed, b}' the States ? By whom, then, 
was it framed? TVas it framed by 'Hhe people of the 
Trnfted States in the aggregate ;" acting as one nation? 

r Nothing is farther from the truth. .\|t' here is not even the 
sha'lo^v of a foundation for any suen' assertion or insinua- 
tion. Will it be said, that the Constitiition was drawn 
up, not by the States, but by those who proposed its vari- 
ous articles? If so, such a subterfuge would be nothing 
to the purpose, and very far from deserving a moment's 
notice. 

The second assertion of Mr. Motley, that the Constitu- 
tion "was not promulgated in the name of the States," is 
equally unfortunate. For, as every one knows, it was 

* The Madison PapRrs, p. 783. 



56 IS DAVIS A TRAITOR? 

promulgated by the Congress of the Confederation in 
which the States alone were represented, and in which all 
the States were perfectly equal. The " Ai tides of Confed- 
eration" says: "In determining questions in the. United 
States, in Congress assembled, each State shall have one 
vote.'"*' It was thus as equals that the States voted in 
determining to promulgate the new Constitution ; and it 
was in consequence of that action of the States, that the 
Constitution was promulgated and laid before the people 
of the several States for their adoption. Here, again, in 
direct opposition to the unblushing assertion of Mr. Mot- 
ley, the Constitution was promulgated by the States in 
Congress assembled. If Mr. Motley had only deigned to 
glance at the history of the transaction about which he 
speaks so confidently, he could not have failed to perceive, 
that the Constitution was first submitted, by the Conven- 
tion of 1787, "to the United States in Congress assem- 
bled ;"f and that it was afterwards, in conformity with the 
opinion of the Convention, promulgated by the States "in 
Congress assembled." But Mr. Motley's theory of the 
Constitution takes leave of history ; and has little to do 
with facts, except to contradict them. 

" The Constitution was not ratified by the States," says 
Motley. In the Eesolutions just quoted, and which were 
unanimously adopted by the Convention of 1787, we find 
this clause: "Besolved, That in the opinion of this Con- 
vention that as soon as the Convention of nine States 
shall have ratified this Constitution, the United States 
in Congi-ess assembled should fix a day on which elec- 
tors should be appointed by the States which shall have 
ratified the same," &c. Not one of the fathers of the Con- 
stitution ever imagined that it was not ratified by the 
States. But in this instance, as well as in many others, 



* Art. V. 

f Resolutions which, " by the unanimous order of the Convention " 
of 1787, was forwarded with the Constitution to Congress. 



IS DAVIS A TRAITOR? 57 

their most familiar idea is repudiated, and their most 
exj)licit language is contradicted, by Mr. Motley. 

In the sentence next to the one above quoted from 
Motle}", he says: " The States never acceded to it [the Con- 
stitution,] and possess no power to secede from it."* This 
peremptory^and flat contradiction of the language of the 
fathers of the Constitution deserves no further notice; since 
it has already been sufliciently exjDOsed. 

* Chapter III. ~~~ 



4* 



CHAPTEE IX. 

The Constitution a Compact between the States— The language of the Consiiti/tion. 

2. The Language of the Constitution. "We, the people of 
the TJnited States, in order to form a more perfect union, 

do ordain and establish this Constitution for the 

United States of America." The first clause of this pre- 
amble to the Constitution, wholly detached from its his- 
tory and from every other portion of the same instrument, 
as well as from all the contemporary and subsequent 
expositions of its author ^s made the very corner-stone 
of the Northern theory of the genoi-al government of the 
United States, .^'hat tremendous theory', or scheme of 
power, lia.s bt-i'n erected on this naked, isolated, and, as we 
expect to show, grossly misinterjireted clause. 

From the bare words of this clause it is concluded, both 
by Story and Webster, that the Constitution was estab- 
lished or ratified, not by a federal but by a national act ; 
or, in other terms, that it was not ratified by the States, 
but by a power suj)erior to the States, that is, by the sover- 
eign will of " the whole people of the United States in the 
aggregate," acting as one nation or political community. 
With Puritanical zeal they stick to " the very words of the 
Constitution," while the meaning of the words is unheeded 
by them, either because it is unknown, or because it does 
not suit their purpose. But words are not the money, 
they are merely the counters, of wise men. The meaning 
of the Constitution is the Constitution. 

In arriving at the meaning of these words, of the very 



IS DAVIS A TRAITOR? 59 

clause in question, I shall not do the least violence to any 
law of language, or to any rule of interpretation. I shall, 
on the contrary, show that we are not " obliged to depart 
from the words of the instrument,"* as Mr. Justice Story 
alleges, in order to sustain our interpretation of any por- 
tion of it. I shall show that the Southern interpretation 
of the clause in question is, in reality, the only fair, legiti- 
mate and reasonable sense of the preamble itself. Nor 
shall I, for this purpose, repeat the arguments which are 
usually employed by the friends of the South in this con- 
trovers}^. Those arguments are amply sufficient to refute' 
the interpretation of Story and Webster. But they are so 
well put b}^ others — by John Taylor, of Caroline ; by 
Judge Upshei', of Yirginia ; by John C. Calhoun, of South 
Carolina ; and especially by Mr. Spence, of Liverpool, that 
I need not repeat them here. Every one may find access 
to them in the admirable work of Mr. Spence.f Hence, 
passing by those arguments, I Rhall, by an appeal to the 
records of the Convention of 1787, make my position good, 
and annihilate the great corner-stone of the Northern the- 
ory of the Constitution of the United States. 

" We, the people of the United States." The history 
of these words is curious and instructive. Only a portion 
of that history has, as yet, been laid before the public of 
England or of the United States. In the light of that 
history the great corner-stone in question will be found to 
crumble into dust and ashes ; and the only wonder will be, 
that considerations so clear and so conclusive should have 
been so long locked up, as a profound secret, in the records 
of the very Convention that formed the Constitiition of the 
United States. 

It is well known that in the original draft of the Con- 



>4 



stitution. Its preamble, instead of saying, "We^ tine people 



AOttaMKSMMHIMKK^- 



* " Commentaries on the Constitution," Book iii., chap. ii. 
t We have only said admirable ; but, all things considered, Mr. 
Spence' 3 work is truly a wonderful production. 



60 IS DAVIS A TRAITOR? 

_of Jhe United j^^ each State by name, as 

tjj ejTTfnH.o n s A rt\ p.l p,a of Confederation had don^^/ If it 
had remained thus, then the States wonld have appeared, 
on the very face of the preamble itself, as the parties to 
the Constitution. XBut the preamble, as is well known, Avas 
afterwards changedj^ fcj^ omitt i ng to mention the States_by 
Dame. S ((T here are, however, some most important facts 
connected with the change and the origin of the words in 
question, which seem to be wholly unknown on both sides 
of the Atlantic. They have, certainly, attracted no notice 
whatever from any of the writers on the great controversy 
between the North and the South. 

The first of these facts relates to the person by whom, 
and the manner in which, the change in question was 
effected ; or, the words, " We, the people of the United 
States," were substituted for an enumeration of the States 
by name. During all the great discussions of the Con- 
vention, the preamble to the Constitution retained its orig- 
inal form ; nor was there, from the beginning to the end 
of their deliberations, a single whisper of dissatisfaction 
with it in that form. Every member of the Convention 
appeared perfectlj^ satisfied that the States should stand, 
on the veiy front of the Constitution, as the parties to the 
compact into which they were about to enter»^-^It Avas 

ionly after the jiroA'isions of the Constitution were agreed 
upon, and its language was referred to " a committee on 
style." that the names of the States av ere silently omitted, 
ind the clause, '*' AVe, the people of the United States," 
substituted in tlieir place. Now, it Avill not be denied, that 
if this change had not been made by the " committee on 
style," then the States would have been the parties to the 
new Constitution just as they had been to the old Articles 
of Confederation. Hence, if the interpretation of Story 
and Webster be the true one, then it must be admitted 
that the " committee on style," appointed merely to express 
the views of the Convention, really transformed the nature 



IS DAVIS A TRAITOR? 61 

of the Constitution of the United States ! Then it must 
be admitted, that the "committee on style," by a single 
turn of its pen, changed the course of history and the 
meaning of its facts ; causing the supreme power of the 
Federal Government to emanate, not from the States, but 
from the people of America as one political community ! 
Did the " committee on style " do all this ? And is it on 
legislation like this that a sovereign State is to be deemed 
guilty of treason and rebellion against the sublime author- 
ity of the people of America, and visited with the utmost 
vengeance of that malign power ? The sublime authority 
of the people of America, the one grand nation, erected 
and established solely by the pen of the " committee on 
style "! 

This clause, " We, the people of the United States," 
introduced by the "committee on style," and passed over 
in perfect silence by the whole Convention, is the great 
stronghold, if it has one, of the- Northern theory of the 
Constitution. The argument from these words appears in 
every speech, book, pamphlet, and discussion by every 
advocate of the North. It was wielded by Mr. Webster 
in his great debate with Mr. Calhoun, in 1833, and still 
more fully in his still more eloquent speech on Foote's 
resolutions in 1830. " The Constitution itself," says he, 
in its very front, declares that it was ordained and estab- 
lished by the people of the United States in the aggre- 
gate." The fact is not so. The Constitution neither 
declares that it was established by the people of the Uni- 
ted States in the aggregate, nor by the people of the United 
States in the segregate. But if we look into the history of 
the transaction, we shall find that it was established b}'^ them 
in the latter character, and not in the former. We shall 
find that each State acted separately, and for itself alone ; 
and that no one pretended, or imagined, that the whole 
aggregate vote of any twelve States could bind the thir- 
teenth State, without its own individual consent and rati- 



62 IS DAVIS A TRAITOR? 

fication. In order to make out his interpretation, Mr. 
Webster interpolates the legislation of the " committee on 
style " with words of his own. 

The change in the preamble to the Constitution was 

effected by the pen of Governor Morris, one of the most 

zealous advocates in the Convention of 1787^ for a strong 

national Government. He certainly wished all power to 

emanate from the people of America, and to have them 

^ regarded as one great nation. But did he accomplish his 

_wish?*ji^In th e Convention, sa ys the record, "Governor 

' / Morris mov^d that the referen ce of the plan (/. e., of the 

I nnri^''^"^^"^) l7fi mni^^ ^'" ""<^ GonoTiil Convention, chosen 

I and authorized by thft p^npl p to consider, amend, and 

establish tb^ RflTr^^p,"* This motinn if adoptcdj Avould 

indeed have caused th e Constitution to be ratified by "the 

people of the U nited States in the aggregate," or as one 

nation . This woiild. in fact, have made it a Government 

emanating from the pe()j)le of America in one General 

Convention assemlilod and ]iot from the States. But how 

Avas this motion received liy the Convention? Was it 

approved and passed in the attirmative by that body? It 

did not even find a second in the Convisntion of 1787\/So 

says the record*, and this is a most significant fact!^ So 

completely was such a mode of ratification deemed out of 

the question that it found not the symptom or shadow of 

support from the authors of the Constitution of the United 

States. 

Now was the very object, which Governor Morris so 
signally failed to accomplish directly and openly by his 
motion, indirectly and covertly effected by his style? And 
if 80, did he design to effect such a change in the funda- 
mental law of the United States of America? It is cer- 
tain that precisely the same effect is given to his words, 
to his style, as would have resulted from the passage of 
his motion by the Convention. Did Governor Morris 

* " The Madison Papers," p. 1184. ' 



IS DAVIS A TRAITOR? '63 

then intend that his words should have such force and 
effect? In supposing him capable of such a fraud on the 
Convention of 1787, I certainly do him no injustice, since 
we have his own confession that he actually perpetrated 
several such frauds on that assembly of Constitution- 
makers. "That instrument," says he in reference to 
the Constitution, "was written by the fingers which 
writes this letter. Having rejected redundant terms, 
I believed it to be as clear as language would permit; 
excepting, nevertheless, a part of what relates to the 
judiciary. On that subject conflicting opinions had been 
maintained with so much professional astuteness, that it 
became necessary to select phrases, which expressing my 
own notions would not alarm others, nor shock their self- 
love; and to the best of my recollection this was the only 
pai't which passed Avithout cavil."* How adroitly, then, 
how cunningly, he cheats the Convention into the uncon- 
scious sanction of his " OAvn notions ;" and this great 
legislator of the North, even in the purer days of the 
infant republic, was proud of the fraud ! 

Nor is this the only instance in Avhich, according to his 
own confession and boast. Governor Morris tricked the 
Convention into the adoption of his own private views. 
"I always thought," says he, in another letter, "that 
when we should acquire Canada and Louisiana, it would 
be proper to govern them as provinces, and allow them no 
voice in our councils. In wording the third section of the 
fourth article I went as far as circumstances would permit 
to establish the exclusion. Candor obliges me to add my 
belief that, had it been more pointedly expressed, a strong 
opposition would have been made."f Thus, as the penman 
of the committee on stj^le, he abused his high position, not 
only to mould the judiciary system of the United States to 
suit his " own notions," but also to determine the fate of 

* " Life and Writings of Governor Morris," vol. iii., p. 323. 
flbid, vol. iii., p. 193. 



64 IS DAVIS A TRAITOR? 

two vast empires! Is not such legislation truly won- 
derful ? Instead of weighing every word with the utmost 
care, and then depositing it in the Constitution as under the 
solemn sanction of an oath, the Convention trusts the style 
of the instrument to a fine writer, who cunningly gives 
expression to his own views in opposition to those of the 
assembly! "In a play, or a moral," says Jeremy Ben- 
tham, "an improper word is but a word; and the impro- 
priety^, whether noted or not, is attended with no conse- 
quences. In a body of laws — especiallj^ of laws given as 
Constitutional ones — an improper word would be a national 
calamity, and civil \^ar may be the consequences of it. 
Out of one foolish word may start a thousand daggers." 
How true, and how fearfully has this truth been illustrated 
by the history of the United States ! 

But although Governor Morris was capable of such a 
fraud on the Convention, we have no good reason to 
believe he intended one, by the substitution of the words, 
"We, the people of the United States," for the enumera- 
tion of all the States by name. He has nowhere confessed 
to any such thing ; and besides he did not xmderstand his 
own words as they are so confidently understood by Story 
and Webster. Every rational inquirer after truth should, 
it seems to me, be curious to know what sense Governor 
Morris attached to the Avords in question, since it was by 
his pen that they were introduced into the preamble of 
the Constitution. Nor will such curiosity be diminished, 
but rather increased, by the fact that he did, in some 
cases, aim to foist his OAvn private views into the Consti- 
tution of his country. How, then, did Governor Morris 
understand the words, "We, the people of the United 
States "? Did he infer from these words that the Consti- 
tution was not a compact between States, or that it was 
established by the people of America, and not by the States ? 
I answer this question in the words of Governor Morris 
himself. \|^^he Constitution," says he, "was a compact, 



IS DAVIS A TRAITOR? 65 

not bctAvcen individual. Imt Ix'twccn political societies, 
tlie_po()ple, not (if .\ nuM'ifa, Imt of the Vnitod States, each 
enjoA'ing sovn-rigii powrr and of course e(j^ua]^ rights." *^-^ 
Language could not possibly be more explicit. Nor could ^ 
it be more evident than it is, that Govenor Morris, the 
very author of the words in cpiestion, entertained pre- 
cisely the same view of their meaning as that maintained 
. by Mr. Calhoun and his school. This point was, indeed, 
made flir too clear by the proceedings of the Convention 
of 1787 for any member of that bodj' to entertain the 
shadow of a doubt in relation to it. jSTor can any one 
read these proceedings as they deserve to be read, without 
agreeing with Governor Morris, that the authors of the 
Constitution designed it to be ratified, as in fact it was, by 
"the people of the United States," not as individuals, but 
as "political societies, each enjoying sovereign power, and 
of course equal rights." Or, in other words, without 
seeing that "the Constitution was a compact," not betAveen 
individuals, "but between political societies," between 
sovereign States. This, in the next chapter, I hope and 
expect to make perfectly clear, by bringing to view the 
origin of the words "We, the people," and by showing 
the sense in which they were universally understood and 
used by the members of the Convention of 1787 in the 
very act of framing the Constitution of the United States. 

*"Lifeaad Writings," vol. iii., p. 193. 



CHAPTEE X. 

The Constitution of 1787 a Compact between the States. Th^ Language of the 
Constitution. 

The Convention of 1787 did, as we have seen, refuse to 
call the government a national one, and gave it the name 
of "the government of the United States." Did they 
then make it a national one by enacting that it should be 
ordained by "the whole people of the United States in 
the aggregate" as one political society ?^^gain, when it 
was projjosed in the Convention to ordain the Constitution 
by "the people of the United States in the aggre- 
gate," in one general Convention assembled, the motion 
failed, as we have seen, to secure a second. Did Gov- 
ernor Morris, then, the author of that proposal, achieve 
by his style what he failed to accomplish by his motiouL/^ 
I? so, what should Ave think of the incom^^etency of the 
Convention ? 

1Sfor was this all. For Madison introduced a motion 
whmh required "a concurrence of a majority of both the 
States and the people"* at large to establish the Constitu- 
tion; and this proposition was rejected by the Conven- 
tion. All these motions, designed to connect the new 
government with a national origin, were' lost, and the 
decree went forth that the Constitution should be estab- 
lished by the accession of nine States, each acting for 
itself alone, and to be bound only b}^ its own voluntary 
act. Now, the question is, was all this action of the Con- 
vention overruled and defeated by the committee on style, 

*"The Madison Papers," p. 1470. 



IS DAVIS A TRAITOR? 67 

or rather by its penman, Gouverneur Mori'is ? If he formed 
such design, then it must be admitted that the Northern 
theory of the Constitution was conceived in fraud and 
brought fortli in iniquity; and every honest man at the 
IsTorth ouglit to be ashamed both of its origin and its exist- 
ence. But, as we have already seen, Governor Morris did 
not understand his own words, "We, the people," as they 
are understood by the more modern expounders of the 
Constitution at the-North. Hence we have no reason to 
believe that he intended, in this case at least, a fraud on 
the design and will of the Convention. 

Was the whole thing done then, and the nature of the 
Constitution transformed, by a slip of the pen, or by acci- 
dent? After all their opposition both to the name and to 
the thing did the Convention, by sheer oversight, blunder 
into the construction of a purely national government, by 
permitting it to be established by the people of America 
as one grand political community? If Mr. Justice Story's 
view of the words, "We, the people of the United States," 
be correct, how did it happen that the opponents of such 
a mode of ratification said absolutely nothing? The whole 
instrument, as amended by the committee on style, was 
read in the hearing of the Convention, beginning with the 
preamble, and yet the words, " We, the people of the 
United States," now deemed so formidable to the advocates 
of State sovereignty, did not raise a single whisper of 
opjiosition. How could this have happened if the words 
in question were supposed to mean the people of America, 
or the whole people of the United States as one political 
society? Were Mason, and Martin, and Paterson, and Ells- 
worth, all too dull to perceive that meaning, which is so 
perfectly obvious to Mr. Justice Story, and which he 
imagines that nothing but the most purblind obstinacy can 
resist? Were all the friends of the States, as independent 
sovereignties, asleep on their posts while Gouverneur Mor- 
ris thus transformed the nature of the Constitution, with- 



68 IS DAVIS A TRAITOR? 

out kno"v\'ing it himself, by causing it to emanate, not from 
the States, but from the people of America as one nation? 
No. Not one of these suppositions is the true one. The 
whole mystery is explained in the proceedings of the Con- 
vention of 1787, as exhibited in "The Madison Paj)ers;" 
an explanation which, however, has hitherto been most 
unaccountably overlooked. We may there find the real 
meaning of the words in question, and see why they gave 
no alarm to the advocates of State sovereignty. 

If we cast our eyes all along the subject of "the mode 
of ratification," ranging from page 735 to page 1632 of 
"The Madison Papers," we shall perceive that the ques- 
tion, whether the Constitution should be ratified by the 
peoj)le of "the United States in the aggregate," or by the 
several States, was not considered by the Convention at 
all. No such question was before the Convention. It was 
neither mooted nor considered by .them. The error of 
Story and Webster is, that they construe the first clause 
of the Constitution as if it referred to one question; 
whereas, in fact, it referred to quite another and a far dif- 
ferent question*^hat is, they construed this clause in j)i'0- 
found darkness i^ to the origin of its words, as well as to 
flu'ir use and application in the Convention of 1787.V'If 
Hie}^ had understood them as actually and uniformly nsed 
or applied by the framers of the Constitution, then they 
could neither have deceived themselves nor the people of 
the North. If, indeed, they had been members of that 
Convention, or had onl}^ examined its proceedings, they 
would have seen why the staunch advocates of State sov- 
cignty raised not even the slightest whisper of opposition 
to the words, "We, the people." Or, if Patrick Henry 
had been a member of that assembly, then he could not 
have exclaimed, as he did, "Why say AVe, the people, and 
not We, the States?" — an exclamation so often quoted by 
Story, Webster, and the whole Northern school of politi- 
cians as a conclusive authority — for then he would have 



IS DAVIS A TRAITOR? 69 

seen that ""We, the people," in the language of the framei's 
of the Constitution, meant precisely the same thing as 
"We, the States," and neither more nor less. 

The question before the Convention was, whether the 
Constitution should be ratified by the legislatures or by 
the sovereign peoples of the several States, mo one 
doubted that it was to be ratified by the States. This, as 
we shall see, was on all hands regarded as a settled point. 
The only question was, whether it should be ratified by 
the States, acting through their legislatures, or through 
Conventions elected to represent the people for that spe- 
cial purpose. In the discussion of this question, most of 
the members insisted that the Constitution should be rati- 
fied by the people, by the States in their sovereign capa- 
city, or by their Conventions. These several modes of 
expression were, in the vocabulary of the Convention, 
T»sed as convertible terms, as perfectly synonymous with 
each other. Hence the phrase, "the people of the United 
States," as used and xmderstood by them, meant the peo- 
ple of the several States as contradistinguished from their 
legislatures, and not the people of America as contradis- 
tinguished from the distinct and separate sovereign peo- 
ples of the different States. This application of the words 
is the invention of theorists merel^^ It was unknown to 
the Convention of 1787, and has had no existence except 
in the imaginations of those by whom their labors have 
been systematically misconstrued and perverted from their 
original design. 

Some few members of the Convention were in favor of 
leaving "the States to choose their own mode of ratifica- 
tion ;" but the gi'eat majority of them insisted that the Con- 
stitution should be referred to the States for ratification, 
either through their legislatures or through their people 
in Conventions assembled. It was in regard to these two 
methods that the Convention was divided. All agreed 
that it should be done by "the States," and the only ques- 



70 IS DAVIS A TRAITOR? 

tion was as to how "the States" should do it. The idea 
that it was designed to be done, or that it was done, by 
the people of America as one nation, is the dream of a 
later day, and, as we shall see, is nothing but a dream. 

Some insisted that it should be ratified by the States in 
their corporate capacity — that is, by their legislatures; 
and others that it should be ratified by the States in their 
sovereign political capacity — that is, by their Conventions 
assembled for that express purpose. Or, in other words, 
some contended that it ought to be ratified by their general 
agents, the legislatures; and others that it ought to be 
ratified by their special agents, the Conventions elected 
and assembled to perform that high act of sovereign 
power. In both cases, it was to be ratified by the States, 
but the opposite parties preferred different modes of rati- 
fication by them. 

In debating this question, as to the mode of ratification 
by the States (the only one before the Convention), some 
of the most inflexible advocates of State sovereignty 
insisted that it -should be ratified by "the jjeople of the 
United States." But then they understood this language, 
and every member of the Convention understood it to 
mean the peoples of the several States,- as distinguished 
from their legislatures. If, for one moment, they had 
imagined that their language could have been construed 
to mean a ratification of the Constitution by the collec- 
tive will of the whole people of America, they would have 
shrunk from its use with horror ; for they dreaded noth- 
inff more than the idea of such an immense consolidated 
democracy. On the contrary, they clung to the States, 
and to their rights, as the only sheet-anchor of safety 
against the overwhelming and all-devouring floods of 
such a national union of mere numbers or individuals. 
George Mason, no less than Patrick Henrj^, would have 
exclaimed against the words, ""We, the people," if, as a 
member of the Convention of 1787, he had not learned 
that they only meant "We, the States." 



IS DAVIS A TRAITOR? 71 

In discussing the question as to the mode of ratification 
by "the States," Mr. Mason said "he considered a refer- 
ence of the plan to the authority of the people as one of 
the most important and essential of the resolutions. The 

legislatures have no power to ratify it Another 

strong reason (said he) w^s that admitting the legislatures 
to have a competent authority it would be wrong to refer 
the plan to them, because succeeding legislatures, having 
equal authority, could undo the acts of their predeces- 
sors."* This argument was repeatedly urged by other 
members ; and it was insisted that if the Constitution 
should be ratified by the legislatures of the States, instead 
of by the people of the States, it woixld rest upon a weak 
and tottering foundation, since the legislatures which had 
established might claim the power to repeal. 

In like manner Mr. Madison said, "For these reasons, as 
well as for others, he thought it indispensable that the 
new Constitution should be ratified in the unexceptiona- 
ble form, and by the supreme authority of the people 
themselves"! — that is, as the context shows, by the 
supreme authority of the people of the several States in 
opposition to their "legislative sanction onW." C^' ^qp ^^^ 
word wa | S ^ ever said dur ing the whole of the dCbate about 
referring the C'oiis'titution T'o""TKe'~p whole 

J country m'fli e a gtirega t e for ratification. This idea had 
not then ris^n alxive the horizon of the political Avorld, 
though it aftorwards^ltecamo the urcat jiolitical sun of 
\he I^orthern section of the Union. 

'Those who advocated the mode of ratification by the 
people, or by the Conventions of the States elected for that 
purpose, prevailed over those who urged the ratification 
by the legislatures. The majority favored the mode of 
ratification by the people or the Conventions. Accord- 
ingly, when the committee of detail reported a draft of 

*" Madison Papers," p. 1177. ; 
t Ibid, p. 796. 



72 IS DAVIS A TRAITOR? 

the Constitution, we find these words — "Article XXI. 

.The ratifications of the Conventions of States shall 

be sufficient for the organization of this Constitution,"* 
Thus it came to be perfectly understood that it should be 
ratified by the Conventions or the peoj)les of the several 
States,' and not by their legislatures. 

I But here the question arose, if the blank for the number 
I of States should be filled with "seven," "eight," or "nine." 
The Constitution, as it stood, might, in the opinion of Mr. 
Madison, be put in force over "the whole body of the peo- 
ple, though less than a majority of them should ratify it." 
But, in the opinion of Mr. Wilson, "As the Constitution 
stands, the States only which ratify can be bound." f In 
order to remove this difficulty, and settle the question, 
Mr. King moved to add, at the end of Article XXI, the 
words "between the said States, so as to confine the opera- 
tion of the government to the States ratifying the same."| 
Thus it was Rufus King, at first one of the most strenuous 
advocates in the Convention of 1787 for a strong national 
government, who introduced the words by which the Con- 
stitution was made binding "between the States so ratify- 
ing the same." These words proved acceptable to Madi- 
son and Wilson, though both were among the most zeal- 
ous advocates of a strong general government in the Con- 
vention of 1787, and they became a part of the new Con- 
stitution. Thus it was universally understood by the 
Convention, and so expressed, that the new Constitution 
was to be established "by the ratification of the Conven- 
tions of States," and to be binding only "between 

\ the States so ratifying the same." 

\ During all this time the name of each State still retained 
I its place in the preamble to the Constitution, in which the 
I committee of detail made no change; and if the party, 
[with Gerry and Hamilton at their head, who wished to fill 






* Madison Papers, p. 1241. f Ibid, p. 1469. t Ibid, p. 1470. 



IS DAVIS A TRAITOR? 73 

the blank with the whole thirteen States, had prevailed, we 
have no reason to believe that any alteration would in this 
respect have been made in the preamble to the Constitution. 
>j/;gut when, after debate, the blank was filled with " nine," it 
' Decanie impossible to specify the States between whom the 
new Const it utidii iniij;ht be established or the new cjov- 
ernmeut organized. Hence it became projier, if not neces- 
sary, to drop the spec^fiation of the States by name — a 
change wliicli, as we have seen, was first introduced by 
the eoinniittee on style, and read to the Convention wit£- 
out raising the slightest objection or murmur-^^' 

"VYe are now prepared to see, as in the cfear light of 
noon-day, why the words, "We, the peoj)le of the United 
States," which have since made so much noise in the 
political world, did not make any whatever in the Con- 
vention of 1787. Why should George Mason, or any other 
adherent of State sovereignty, object to the words intro- 
duced by the committee on style? They merely expressed 
the very thing for which he had contended, and which had 
been fully expressed in the seventh Article of the new 
Constitution. For when it was determined that the Con- 
stitution should be ratified by " the Conventions of the 
States," and not by the legislatures, this was exactly 
equivalent, in the uniform language of the Convention of 
1787, to saying that it shall be ratified by " the people of 
the States." Hence, the most ai dent friend of State rights, 
or State sovereignty, saw no reason why he should object 
to the words, " We, the people of the United States," 
because he knew they were only intended to express the 
mode of ratification by the States for which he had con- 
tended — that is, by the States in their sovereign caj)acity, 
as so many politic:J societies or peoples, as distinguished 
from their legislatui'cs. 



CHAPTEE XI. 

The OonstUuiion of 1787 a Compact between the States. The views of Hamilton, 
Madison, Morris, and other Framers of the Constitution. 

This subject lias already been anticipated, but by no 
means exhausted. Considering the unparalleled boldness 
of Northern assertion, it is necessary to lay bare a few 
more of its hidden mysteries. " Indeed," says Mr. "Web- 
ster, "if we look into all contemporary history; to the 
numbers of The Federalist; to the debates in the Conven- 
tion ; to the publication of friends and foes, they all agree, 
that a change had been made from a confederacy of States 
to a different system ; they all agree, that the Convention 
had formed a Constitution for a national government. 
"With this result some were satisfied, and some were dissat- 
isfied ; but all admitted that the thing had been done. In 
none of the various productions and publications, did any 
one intimate that the new Constitution was but another 
compact between States in their sovereign capacity. I do 
not find such an opinion advanced in a single instance."* 

Now this is certainly as bold and sweeping an assertion 
as could well be made in human language. It is certainly 
as full, round, and complete an untruth as was ever 
uttered. It will, upon examination, be found that, to use 
the mildest possible terms, it is fitly characterized by the 
two words — high-sounding and hollow. It would, perhaps, 
be difficult for any man, except Mr. "Webster and his suc- 
cessor in the Senate of the United States, to produce a 

* Speech in Senate, Feb. 16, 1833. 



IS DAVIS A TRAITOR? 75 

bold and sweeping an assertion, which, like the above, is 
at every point diametrically opposed to the truth. I shall 
proceed to prove, and to establish beyond the shadow of a 
doubt, this heavy accusation against " the great expounder," 
by extracts from the records and publications to which he 
so solemnly, and yet so unscrupulously, appeals. 

I shall begin with the Convention that formed the Con- 
stitution itself It will not be necessary to rejiroduce the 
language of Grouverneur Morris, one of the most celebrated 
men of that Convention, and one of the warmest advo- 
cates of a strong national government. We have already 
seen, * that he pronounced the Constitution " a compact 
between the United States, each enjoying sov- 
ereign power." Indeed, in the Convention of 1787, he 
expressly declared, that the object was to form a " com- 
pact with other States ; " and he afterwards declared, that 
" the thing had been done." Again, James Madison himself, 
" the father of the Constitution," and the most laborious 
member of the Convention of 1787, called it, as we have 
yseen, "a pact" between the States in that Convention ; f 
• and from that day to the end of his life, Mr. Madison con- 
.liiiued to pronounce the new Constitution "a compact to 
which the States are the parties." In the Virginia ratifying 
Conve ntion of 1788. in •' the numbers of the Federalist/' in 
t^jeTirgiiiia Tves(jliitions of '98 and '90, in the Yirginia 
EeporTonSOO, in his celebrate<l letter to Mr. Everett of 
1830 ; in one and all of these well-known public docu- 
ments, as well as in others from his pen, this illustrious 
architect" of the Constitution most emphatically pro- 
nounced it ^' a compact to which the States are the par- 
ties." :^In the Virginia Eesolutions, a political formula 
whicTi the American people, of all parties and all sec- 
tions, had sworn by for more than thirty years, Mr. 
Madison wrote for the legislature of his State : " This 
Assembly doth explicitly and peremptorily declare, that 
* Chapter v. 



76 IS DAVIS A TRAITOR? 

it views the powers of the Federal Government, as resulting 
from the compact, to which the States are parties." How 
completely, then, was the very existence of JVIr. Madi- 
son, and of all the great transactions in which he had 
borne so conspicuous a part, ignored by Mr. Webster in 
the bold and astounding assertion, that neither friend nor 
foe had ever considered the new Constitution as a "compact 
between the States." The venerable old man must, indeed, 
have felt, as he read the speech of Mr. Webster, that he 
was fast sinking into oblivion, and that all the great tuans- 
actions of his life were fast being forgotten amid the blaze 
of new ideas. 

Accordingly, in a letter to Mr. Webster, called forth by 
the very speech in question, Mr. Madison once more raised 
his voice in favor of the 07ie invariable doctrine of his life. 
"It is fortunate," says he, " in the letter referred to, "when 
disputed theories can be decided by undisputed facts ; and 
here the undisputed fact is, " that the Constitution was made 
by the people, but as embodied into the several States, "ivho were 
parties to it." Again, in the same letter, he says: "The 
Constitution of the United States, being established by a 
competent authority, by that of the sovereign people of the 
several States, ivho icere parties to it." Most fortunate is it, 
indeed, when disputed theories may be tested by undis- 
puted facts; but how infinitely unfortunate is it, when 
new and disputed theories begin to pass for everything, 
and indisputable facts for nothing ! Nay, when those who 
cling to hitherto undisputed facts are accounted traitors, 
and visited with a merciless and a measureless vengeance, 
by those who, having nothing better than disputed theo- 
ries to stand on, are nevertheless backed by the possession 
of brute force sufficient to crush their opponents, and 
silence the voice of truth ! 

All agree, says Mr. Webster, " The Federalist," " the 
debates in the Conventions," " the publications of friends 
and foes" — all agree, '^that a change had been made from a 



IS DAVIS A TRAITOR? 77 

confederacy of States to a different system." Now, there is 
James Wilson, inferior only to Madison and Hamilton in 
the influence he exerted in favor of the new Constitution, 
who declares, that the only object aimed at by the Con- 
vention of '87, was to enable the States " to confederate 
anew on better principles ; " and if no more could be 
effected, he would agree to "a partial union of the States, 
with a door left open for the accession of the rest." 
Accordingly, it was finally agreed by the Convention, that 
nine States might form the new Union, with a door left 
open for the accession of the other four. In fact, eleven 
States confederated on the new principles ; and it was more 
than a year before the remaining two States acceded to 
the compact of the Constitution, and became members of 
the Union. 

Even Alexander Hamilton, in that great authority. The 
Federalist, to which Mr. Webster so confidently appeals, 
is directly and flatly opposed to the bold and unscrupulous 
assertion of " the great expounder." If the new Consti- 
tution should be adopted, says he, the Union would " still 
be, in fact and in theory, an association of States, or a 
confederacy." * Again, in the eightieth number of the 
work, Hamilton calls the new Union " the Confederacy j" 
putting the word in capital letters, in order that it may 
not be overlooked by the most superficial reader. If neces- 
sary, it might be shown by various other extracts, that 
Alexander Hamilton, while insisting on the adoption of 
the new Constitution in The Federalist, speaks of the 
new Union as a confederacy of States. How, then, could 
Mr. Webster avouch The Federalist to support the asser- 
tion, that " a change had been made from a confederacy 
to a different S3^stem " ? Was this in his character of " the 
great expounder," or of the great deceiver? 

This appeal to the Federalist appears, if possible, still 
more wonderful, when viewed in connexion with other 

* Federalist, No. ix. 



78 IS DAVIS A TRAITOR? 

numbers of the same work. Indeed, it was objected to 
the new Constitution by its enemies, that "it would make 
a change from a confederacy to a different system;" and 
this very objection is met and repelled in the pages of the 
Federalist. "Will it be said," demands the Federalist, 
"that i^iQ fundamental principles of the confederation were 
not'Within the purview of the Convention, and ought not 
to have been varied? I ask, ^hat are these principles? 
Do they require, that in the establishment of the Constitu- 
tion, the States should be regarded as distinct and inde- 
pendent sovereigns ? They are so regarded by the Con- 
stitution proposed."* Now here the position of Mr. "Web- 
ster, that the new Union was not a confederacy of States, 
that it was not made by the States " as distinct and inde- 
pendent sovereigns," but was ordained by "the people of 
the United States in the aggregate" as one nation; is 
directly and emphatically negatived by the very authority 
to which he appeals in support of his monstrous heresy. 

Nor is this all. In the preceding number of the Feder- 
alist, it is said, "Each State, in ratifying the Constitution, 
is considered as a sovereign body, independent of all 
others, and only to be bound by its own voluntary act." 
Thus, according to the Federalist, the Constitution was 
ratified by "each State, as a sovereign body, independent 
of all others." No such thing, says Mr. "Webster, it was 
not ratified by the States at all, it was ordained by a power 
superior to the States, by the sovereign will of the whole 
people of the United States; and yet he boldly and 
unblushingly appeals to the Federalist in support of his 
assertion ! Why did he not quote the Federalist f Nay, 
why did he not read the Federalist, beforS he ventured on 
such a position ? 

Mr. Webster has, indeed, quoted one expression from 
the Federalist. "The fabric of American empire," says 
Hamilton, in the twenty-second number of the Federalist, 

*No. XL. 



IS DAVIS A TRAITOR? 79 

"ought to rest on the solid basis of the consent op the 
PEOPLE." After quoting these words, Mr, Webster adds, 
with his usual confidence, "Such is the language, sir, 
addressed to the people, while they yet had the Constitu- 
tion under consideration. The powers conferred on the 
new government were perfectly well understood to be 
conferred, not by any State, or the people of any State, 
but by the people of the United States." ^N'ow, if Mr. 
Webster had only paid more attention to the debates of 
the Convention of 1787, he might have escaped this egre- 
gious blunder, this gi'oss perversion of the words of Alex- 
ander Hamilton. 'Nay, if he had only considered the 
three sentences which immediately precede the extract 
made by him, he would have seen that Hamilton was 
speaking to a very different question from that which had 
so fully engrossed and occupied his mind. He would have 
seen, that the language related, not to the question whether 
the Constitution ought to be ratified by the people of the 
States, or by the people of America as one nation; but to 
the question, whether it ought to be ratified by the Legis- 
latures, or by the people, of the several States. This was 
the question of the Convention of '87 ; and this was the 
question to which its ablest member was speaking, when 
he said " the fabric of American empire ought to rest on 
the solid basis of the consent of the people." Eead the 
context, and this will be perfectly plain. "It has not a 
little contributed," saj-s the context, "to the infirmities of 
the existing federal system, that it never had a ratification 
of the people. Resting on no better foundation than the 
consent of the several Legislatures, it has been exjiosed to 
frequent and intricate questions concerning the validity 
of its powers; and has, in some instances, given rise to the 
enormous doctrine of legislative repeal." Such is the con- 
text of Mr. Webster's very partial and one-sided extract. 
It shows that Hamilton was arguing the advantage of the 
new system over the old, just as it had been argued in the 



80 IS DAVIS A TRAITOR? 

Convention of 1787 ; because the old confederation rested 
on the consent of the Legislatures of the several States, 
"whereas the new confederac)^ was to rest on the consent 
of the people of the several States. Hence it would be 
free from all doubts with respect to the power of "legisla- 
tive repeal." 

Alexander Hamilton certainly knew that the Constitu- 
tion was merely a proposal, or plan of government, and 
would so remain fintil it should be ratified by "the Con- 
ventions of nine States;" and that then it would be bind- 
ing only "between the States so ratifying the same." For 
these are the words of the Constitution itself, as well as 
of his own formula of ratification in the Convention of 
1787. These nine States or more, thus leagued together 
by a solemn compact entered into by the people of the 
several States in their highest sovereign capacity, is "the 
solid basis " to which he refers ; and which, like so many 
massive columns, were to bear up "the fabric of American 
empire." The consent of the whole people indeed ! The 
majority of the whole voting population of the United 
States, which may be one thing to-day and another to- 
morrow, and which is bound by nothing but its own sov- 
ereign will and pleasure ! Surely, nothing could be less 
solid or stable, or less fit to support "the fabric of Ameri- 
can empire." Such a sj^stem were, indeed, moi'e like Aris- 
tophines' City of the Birds, floating in mid air, and tossed 
b}^ the winds, than like the scheme of a rational being for 
the government of men. No conception could be more 
utterly inconsistent with all the well-known sentiments of 
Alexander Hamilton. 

But if, instead of perverting the high authority of the 
Federalist by wresting one particular passage from its 
context, Mr. Webster had only read a little further, he 
would have discovered what was then "perfectly well 
understood" respecting the nature of the Constitution. 
He would have discovered, that it was, according to the 



IS DAVIS A TRAITOR? 81 

Federalist, established, not by '-the people of the United 
States in the aggregate," or as one nation, but by each of 
the States acting for itself alone. "The Constitution is to 
be founded," says the Federalist,''^ " on the assent and rati- 
fication of the people of America, given by deputies elec- 
ted for the special purpose." This, too, is the language 
"addressed to the people, while they yet had the Consti- 
tution under consideration." Why, then, is not this lan- 
guage seized upon, and held up as proof positive, that the 
Constitution rested on the assent, "not of any State, or 
the people of any State," but on that of "the people of 
America"? The reason is plain. Though these Avords, 
taken by themselves, would have answered Mr. Webster's 
purpose better than his extract from the Federalist; yet 
are they immediatel}^ followed, in the same sentence, by 
an explanation, which shows their meaning when used in 
the Federalist. "The Constitution is to be founded," says 
that highest of all authorities "on the assent and ratifica- 
tion of the people of America, given by deputies elected 
for the special purpose ; but, it is added, "this assent and 
ratification is to be given by the people, not as individuals 
comprising one entire nation, but as composing the district and 
independent States to which they respectively belong. It is to 
be the assent and ratification of the several States, derived from 
the supreme authority in each State — the authority of the peo- 
ple themselves^ "The act. therefore. estai)lisliiiig the Coiisti- 
t ^tion will n ot lie a ihttimKi/. but a federal a</t."j' Xot so, 
says Mr. Webster, tlu" ( 'Miisiiiutidu was cstaljlished not by 
ix federal, hnt by a national act; not by an}- State, or the 
people of any State, but by the whole people of the United 
States as one sovereign body ; and yet he appeals to the 
Federalist in support of his doctrine ! 

"That it will be a federal, and not a national act," con- 
tinues the Federalist, "as these terms are understood by 
objectors, the act of the people, as forming so many inde- 

* No. XXXIX. flbid^ ■ 

5* 



82 18 DAVIS A TRAITOR? 

pendent states, not as forming one aggregate nation, is 
obvious from this single consideration, that it is to result 
neither from the decision of a majority of the people of 
the Union, nor from that of a majority of the states. It 
must result from the imanimoiis assent of the several States 
that are parties to it, differing no otherwise from their 
ordinary assent than in its being expressed, not by the 
legislative authority, but b}^ that of the people themselves. 
Were the people regarded in this transaction as forming 
one nation, the will of the majority of the whole people 
of the United States would bind the minority ; in the 
same manner as the majority in each State must bind the 
minority ; and the will of the majority must be determined 
either by a comparison of the individual votes, or by con- 
sidering the wdll of the majority of the States, as evi- 
dences of the will of a majority of the people of the 
United States. Neither of these has been adopted. Each 
State, in ratifying the Constitution, is considered as a 
sovereign body, independent of all others, and only to be 
bound by its own voluntary act." Could language be 
more perfectly explicit? Yet, directly in the face of all 
this, or else in profound ignorance of all this, Mr. Web- 
ster appeals to the authority of the Federalist in favor of 
the very position which, as we have seen, it so pointedly 
condemns. Nay, in spite of the clear, explicit, and unan- 
swerable words of the Federalist, Mr. Webster appeals to 
that work to show, as a fact then " perfectly' well under- 
stood," that the powers of the new government were to 
be conferred, or its Constitution established, not by the 
States, nor by the people of the States, considered as sov- 
ereign bodies,' and each acting for itself, but by the ^vhole 
people of the United States as one sovereign body or 
nation ! To show", in one word, that the Union was 
formed, not by an "accession of the States, but by the one 
people of the United States acting as a unit ! " The 
great expounder" does not follow, he flatly contradicts, 



IS DAVIS A TRAITOR? 83 

the very work he appeals to as the highest of authorities; 
and that, too, in regard to the greatest of all the political 
questions that have agitated the people of America ! 

There "were those, it is true, who regarded the new Con- 
stitution as the fundamental, or organic law, of one great 
consolidated government. But these were its enemies. 
They represented it as such because they wished it to be 
rejected, and because they knew no other objection would 
render it so obnoxious to the people of the States. It is 
well known, indeed, that the greatest difficulty in the way 
of the new Union was the jealousy of the central power, 
which the several States had long entertained. This jeal- 
ousy was so great in the States of ISew York and of Vir- 
ginia, that when their Conventions met to ratify or to 
reject the Constitution, it is well understood, and admit- 
ted, that they were both opposed to the new grant of 
powers. The State-Eights men in both Conventions, who, 
at first, Avere in favor of rejecting the Constitution, were 
in a majority, as is well known, and fully c once d e d -^ Clt 
was only by the herculean labors of Alexand er Kamiltonj 
t hat the Convention of New Yor k Avere. at least, induced 
to ratify it by a major ity of.thr ee vote;;. In like man- 
ner, the labors, the management^ ami the el(j(|Uonee of 



KjWBffigJSiit^cdea, finally, after a long and desperate 
struggle, in carr ying it in the Convention of A'ii-ginia by 
the sm all majority of ten votes. The result was long^ 
doubti ui' in Dot h Conventions. -««i^^ 
*"*PaOTck Henry, in the ratifying Convention of Yirginia, 
put forth all his powers to cause the new Constitution to 
be rejected. His appeals to the jealousy of the States with 
respect to the power of the Central Government were tre- 
mendous. He dwelt, particulai'ly, on the words of the 
preamble, "We, the people of the United States," to show 
that his most fatal objection to the new Constitution was 
well founded ; and he added, " States are the characteristic 
and soul of a confederacy. If the States be not the agents 



8? IS DAVIS A TRAITOR? 

of this compact, it must be one great consolidated govern- 
ment of the people of the United States." He insisted 
that it would be so.S/But Patrick Henry, it should be 
^remembered, wasijiot a member of the Co nvention of 1787, 
and he was an enemy of the new Constitution.^^His mind 
was fertile and overflowing with objections; Ii he had 
known the history of the words, "We, the people of the 
United States," as it appears in the debates of the Con- 
vention, which had not then been published, he would 
have seen, that "We, the people," really meant "We, the 
States ; or We, the Convention, acting in the name and 
by the authority of the sovereign people of the several 
States. * Or, if he had compared the words in question 
with the seventh Article of the Constitution, he would 
have seen, that the new Constitution was to be established 
by the States, and was to be binding only " between the 
States so ratifying the same." But as the enemy, and not 
the advocate, of the new Constitution, he labored to enforce 
his objection to it, rather than to consider and weigh its 
words, or explain its real meaning to the Convention. 

His objection would, no doubt, have proved fatal to the 
new Constitution, but for the presence and the power of 
James Madison : who met the great objection of Patrick 
Henry, and silenced much of the apprehension which his 
eloquence had created. He was known to have been the 
most diligent and active member of the Convention that 
formed the Constitution; and was supposed, therefore,, to 
understand its real import better than any man in the 
ratifying Convention of Virginia.)iLJ Iis position, and his 
mean s of imforraation, certainly gave him a great advan- 
tage over his eloquent rival, Patrick Henry. In his reply 
to Mr. H enry, he explained the Avo^tls " We, the people," 
precisely as he had before explained them in the The Fed- 
eralist. He said : ''The parties to it were the people, but 
not the people as composing one great society, but the 

*See chap. x. 



IS DAVIS A TRAITOR? 85 

people as composing tJu'rtcai sovereignties." Again: "If 
it were a coiisolidaU'd governiiii'iit," t^aid lie, "the assent of 
a luajority ot' t ln' pcopK' would Itr sufficient to estuljlisli 
it. But it was lo \n: Mndina; on the people of a State only 
hli tJictr oicii .s^j/iii-tft-: cu/iscnt." This argument, founded on 
a wcll-kuowu fact, was absolutely uuanswerable.y' 

Yet Mv. Justice Story has, two oi- three times, quoted 
the words of Patrick Henry in the Virginia Convention, 
as if they were a most valuable authority, without a single 
solitary word in relation to the unanswerable reply of Mr. 
Madison ! On this point he is profoundly silent ! That is 
to say, he construes the Constitution, not as it was under- 
stood by its framers and its friends, but as it was misrep- 
resented by its enemies, in order to cause its rejection! 
He holds up the words of the one, as a great authority, 
and he does not let the reader of his most learned Com- 
mentaries know the language of the other in reply ! "Was 
that honest? 

Nor is this all. Ho construes the preamble to the Con- 
stitution, so as to make it contradict itself "We, the 
people of the United States, in order to form a more per- 
fect Union." A Union of what — of individuals, or of 
States ? Does not ever}^ riian under the sun know, this 
means a Union of States, and not of individuals? Or why 
speak of the United States at all ? Or why, in the same 
pi-eamble, say "this Constitution for the United States of 
America?" 

I object to the Massachusetts interpretation of the first 
clause of the preamble to the Constitution. 1. Because 
it falsifies the facts of history respecting the mode of its 
ratification, which was by the several States in Convention 
assembled, each acting for itself alone, " as a sovereign 
body, independent of all others, and to be bound only by 
its own voluntary act," and not by the people of America 
as one nation. 2. Because it makes these woi*ds, " We, 
the people," contradict the seventh Article of the Consti- 



86 IS DAVIS A TRAITOR? 

tution ; an Article which, historically considered, has pre- 
cisely the same origin and the same sense with those words 
themselves. 3. Because it attaches to these words a dif- 
ferent sense from that attached to them by the Convention 
of 1787, as seen in the debates which gave rise to them. 
4. Because it contradicts the sense given to these words by 
Gouverneur Morris, by James Madison, and by other fra- 
mers of the Constitution of the United States. 5. Because, 
not satisfied with making this clause contradict everj^thing 
else, it makes it contradict itself, or at least the very next 
clause in the same sentence with itself. 

But there is another thing which Mr. "Webster could 
not find in "all con temporal y history," nor in "the 
numbers of The Federalist^" nor in "the publications of 
friends or foes." In none of these various productions 
or publications did any one intimate that the new Consti- 
tution was but another compact between the States in their 
sovereign capacity. I do not find such an opinion advanced 
in a single instance." Hence, after so careful, so consci- 
entious, and so laborious a search, he feels perfectly justi- 
fied in the assertion, that "the Constitution is not a 
compact between sovereign States." This is, indeed, the 
very title of his speech in 1833, and the great burden of 
all his eloquence. Yet, with no very great research, I 
have found, and exhibited in the preceding pages, a mul- 
titude of instances in which "such an opinion is advanced." 
Nor was it at all necessary to ransack "all contemporary 
history" f )r this purpose. ^(Q[^^^_F^^mij"5Htsd^^^ grea t 
^political classic of Aineri<';i, has already furnished several 
such instaiH-os. It teaches us, as we have seen, that "each 
^tatc, in ratifying the Constitution, is considered as a 
~sov^Jign hodu, mdepeiid&nt of . alL others ; * and also tha]t» 
in the establishment of the Constitution, the States are 
"regarded as distinct and independent sovereigns._^'j;^^ 
"^ But this, it may be said, does not use the term compact. 

* No. xxxix. f xl. 



IS DAVIS A TRAITOR? 87 

Very well. The same number of The Federalist, 'vvhich 
says that the Constitution was to be established by each 
State, as a sovereign body, independent of all others, 
calls that Constitution "the compact." Thus, according 
to The Federalist, the Constitution, the compact, was 
established by "distinct and independent sovereigns." 

But niimbers XXXIX and XL were written by Mr. 
Madison. Every one knows, that he always regarded the 
Constitution as a compact between "distinct and independ- 
ent sovereigns." That is, every one at all acquainted with 
the political history of the United States, except Mr. Jus- 
tice Story and Mr. Webster during the great struggle of 
1833. It must be conceded, then, in spite of the sweeping 
assertion of Mr. "Webster, that Madison held the Constitu- 
tion to be "a compact between the States in their sover- 
eign capacity," and that, too, in the pages of the Federalist 
as well as elsewhere. A rather conspicuous instance to be 
overlooked by one, whose search had been so very careful 
and so very conscientious! Nor does this instance stand 
alone. Alexander Hamilton is the great writer of the 
Federalist. ^0\\t of its existing eighty-five numbers, no 
^ess than fifty proceeded tVom his \)'^\\] five tVom the pen 
m^J ixflsmd thirty from that of Mailison ; luid, in the opin- 
ionof the Xorth, Xhc uiinilH'rs of Ilainiltoii surpass those 
of Madison fur mure iu quality than iu quantity. In the 
estimation of the North, indeed, Hamilton is i\\(/ one sub- 
lime architect of the Constitution, to whom it owes "every 
element of its durability and beaut}^." What, then, does 
Hamilton say about the nature of the Constitution ? Does 
he call it a compact between States, or does he allege that 
it was ordained by the people of the United States as one 
sovereign nation? I do not wish to shock any one. I 
am aware, it will be regarded, by many of the followers 
of Story, as akin to sacrilege to charge Alexander Hamil- 
ton with having entertained the treasonable opinion, that 
the Constitution was a compact between the States. But 



88 IS DAVIS A TRAITOR? 

as we have, at the South, no grand manufactory of opin- 
ions to supply '"all contemporary history," so we must 
take the sentiments of Alexander Hamilton just as we 
find them, not in the traditions of the North, but in his 
own published productions. The simj)le truth is, then, 
that he calls the provisions of the Constitution of 1787, 
"The compacts which are to embrace thirteen distinct 
States, i-n a common bond of amity and Union ;" and adds, 
these compacts must "necessarily be compronfises of as 
many dissimilar interests and inclinations."* Thus, accord- 
ing to Hamilton, the "thirteen distinct States" made com- 
promises with each other, and adopted them as " the com- 
pacts" of the new Union! 

ISTor is this all. On the following page, he says : " The 
moment an alteration is made in the present plan, it 
becomes, to the purpose of adoption, a new one, and must 
undergo a new decision of each State." f Indeed, even Ham- 
ilton, the great consolidationist of his day, never dreamed 
of any other mode of adopting the new Constitution, than 
by "a decision of each State." Hence he continues, "To 
its complete establishment throughout the Union, it will 
therefoi-e require the concurrence of thirteen States." 
Again, he says, "Every Constitution for the United States 
must inevitably consist of a great variety of particulars, 
in which thirteen Independent States are to be accom- 
modated in their interests or opinions of interest. "| 

"Hence the necessity of moulding and arranging all the 
particulars which are to compose the Avhole, in such a 
manner, as to satisfy all the parties to the compact." That 
is, in such a manner as to satisfy the thirteen Independ- 
ent States, who are "the parties to the Compact."§ 
Well may the great usurpers of the North exclaim, "Ut tu 
Brute ! 

The whole Federalist is in perfect harmony with this 
key note of the system it recommended to the people 

*Federalist, No. LXXXV. flbid^ JIbid. ^Ibid. 



IS DAVIS A TRAITOR? 8 9 

By Hamilton, the States are called "the Members of the 
Union ;"* the units of which it is composed, and not the 
fractions into which it is divided. Again, he speaks of 
"the Union, and of its members,"f by which, as appears 
from the context, he evidently means the States. In like 
manner, Mr. Madison speaks of the new Union as " Con- 
federated States."! Again, he says, "Instead of report- 
ing a plan requiring the confirmation of all the States, they 
reported a plan, which is to be confirmed, and may be 
carried into etfect, by nine States only."^ Indeed, similar 
testimonies to the ftict, that the States entered into the 
compact of the Constitution, are spread over the pages 
of the Federalist, as well as over "all contemporarj" his- 
tory." 

I might easily produce a hundred other proofs of the same 
fact from "the Federalist," from "the publications of friends 
and foes," from "the debates of the Convention," without 
the aid of "all contemporary history." But I am sick of 
dealing with such unbounded and disgusting license of as- 
sertion. 

The truth is, that Mr. "Webster was a mere theorist, nay, 
a mere party sophist. He took an oath to support, but 
not to study, the Constitution. Hence, instead of a close, 
partial, and honest study of the political history of the 
country and of the Constitution ; he merely looked into 
the great original fountains of information to furnish him- 
self out with the weapons and the armor of a party cham- 
pion, or 23i"ize fighter. If he ever i-ead any of the docu- 
ments to which he so confidently appeals, he must have 
read them with a veil over his eyes; or else, in the heat of 
debate, he must have forgotten all his first lessons in the 
political history of his country. From his own generation, 
he won^the proud title of "the great expounder;" yet, after 
his appeal to posterity shall have been decided, he will be 
pronounced "the great deceiver." 

*No. xlii. fNo. ix. JNo. xxxvi. ?No. xl. 



CH.APTEE XII. 

The Vonvention of 1787 describes the Constitution formed by tliem as a compact 
between the States. 

The Convention of 1787, in their letter describing the 
formation of the new Constitution, use precisely the polit- 
ical formula employed by Sidney, Locke, and other cele- 
brated authors, to define a social compact. Hobbes was 
the first to reduce this theory to a scientific form; and it 
is no where more accurately defined than by himself. 
"Each citizen," says he, "compacting with his fellow, says 
thus: I convey my right on this party, upon co7idition that 
you pass yours to the same; by which means, that right 
which every man had before to use his faculties to his 
own advantage, i« now wholly translated on some certain 
man or council for the common benefit." * Precisely the 
same idea is conveyed by the formula of 1787: "individ- 
uals entering into society must give up a share of liberty 
to preserve the rest; and the great difficulty is, as to* 
what rights should be delegated to the governing agents 
for the common benefit, and what right should be retained 
by the individual. This is the social compact as defined 
by Hobbes himself; and although it was an imaginary 
transaction in regard to the governments of the Old 
World, it became a reality in relation to the solemnly 
enacted Constitutions of America. 

But, in the letter of the Convention of 1787, it comes 
before us in a new relation. In Hobbes, "each citizen 

* Hobbes' Works, vol. ii., p. 91. 



IS DAVIS A TRAITOR? 91 

compacts with his fellow," as in the formation of our 
State Constitutions; whereas, in the letter before us, each 
State compacts with her sister States. "It is obviously 
impracticable," saj^s the Convention,* "in the Federal 
Government of these States to secure all rights of inde- 
pendent sovereignty to each, and yet provide for the 
honor and safety of all. Individuals entering into society 

must give up a share of liberty to preserve the rest," 

"It is at all times difficult to draw with precision the line 
between those rights which must be surrendered, and 
those which may be reserved ; and on the present occa- 
sion this difficulty was increased by a difference among 
the several States [the parties about to enter into a new 
Union] as to their situation, extent, habits, and particular 
interests." 

Yet, in the face of all this, the whole school of Massa- 
chusetts politicians, with Story and Webster at their head, 
assert, that the Federal Grovernment is a union, not of States, 
but only of individual citizens ! Who, before or beside 
these gross perverters of the most palpable truth, ever 
applied the term " Union " to a government of individ- 
uals ? Who ever heard of the Union of Massachusetts, or 
of New York, or of Virginia? The truth is, that this 
word is only applicable to a confederation of States ; and 
hence, even Alexander Hamilton, after he had failed to 
establish a consolidated national government, familiarly 
called the new Union " a confederacy."! It was reserved 
for a later day, and for a bolder period in the progress of 
triumphant error, to scout this as an unconstitutional idea ; 
and to declare, by way of proof, that "there" is no language 
in the Constitution applicable to a confederation of 
States." J Is not the term " Union" applicable to a con- 
federation of States, or is it only ai^plicable to a social 
combination of individuals? Does not the Constitution 

* See their Letter. f Federalist, No. Ixxx. 

X Webster's works, Vol. iii., page 470. Great speech of 1833. 



92 IS DAVIS A TRAITOR? 

speak of ''the United States," or the States united? 

J^aj, does it not expressly declare, that it shall be binding 

S^" between the States so ratifying the same?'^^r, if the 

X Constitution itself has been silent, does not fhe letter of 

1787, which Avas struck in the same mint with that solemn 

compact, declare that each State, on entering into the new 

Union, give up a share of its "rights of independent 

sovereignty," in order to secure the rest? 

I shall now take leave of the proposition, that the Consti- 
tution was a com2:)aet betAveen the States of the Union ; a 
proposition far too jilain for argument, if the clearest facts 
of history had onl}^ been j)ermitted to speak for them- 
selves. " I remember," says Mr. Webster, " to have heard 
Chief Justice Marshall ask counsel, who was insisting 
upon the authority of an act of legislation, (f he thought 
an act of legislation could create or destroy a fact, or change 
the truth of history?" "Would it alter the fact," said he; 
"if a legislature should solemnly enact, that Mr. Hume 
never wrote the History of England ? "* " A legislature 
may alter the law^," continues Mr. Webster, "but no 
po^wer can reverse a faet."f Hence, if the Convention of 
1787 had expressly declared, that the Constitution was 
ordained by " the people of the United States in the aggre- 
gate," or by the people of America as one nation, this 
would not have d'estroyed the fact, that it was ratified by 
each State for itself, and that each State was bound only 
by " its own voluntary act." If the Convention had 
been lost to all decency, it might indeed haA^e stamped 
such a falsehood on the face of the Constitution ; but this 
w^uld not have " c-hanged the truth of histoiy." 
^^tory and Webster lay greai stress, as Ave haA^e seen,f 
on the fact, that the first resolution passed by the Conven- 
tion of '87 declared, that a National Govcritmcnt ought to, ^ 
^estab lished." But, l^y a i^rusy supjiressio reri, they con 
c eal the lact , tliat this resolution was altcrward taken wp, 



*Works, Vol. ii, page 334. fChap. 



I 



IS DAVIS A TRAITOR? 93 

nd the term luifinnal deliberately dropped by the unani- 

1011^; (It'ei^iijn of the Cuiivent ii>n. They also conceal the 

fart, tliat after tlic ( 'oiistitiUinn wa-^ aelually formed, the 

/Conv ention called tlie AToi'k of their handSj^not '-a Xational 

\ Government," but "The FeuebjJj Governm£nt of these 

\ - ^1 11 1 1.111 If. i«« in ii .- ---• 

I SrATK^.'jj({fhis name was given, not before, but after, the 
Convention was full; not before the first article of the 
Constitution was adopted, but after the whole instrument 
had been completely finished; and it was given, too, by 
"the unanimous order of the Convention."* Yet, in con- 
tempt of all this. Story and "Webster say, that the Con- 
vention made, not a "Federal Government of States," but 
"a National Government " for the one people of America, 
and they prove this, by the exploded resolution p9,s8ed by 
them ! That is, they still insist on the name expressly 
rejected by the Convention, as if it had received the sanc- 
tion of their high authority; and that, too, in direct oppo- 
sition to the name actually given by them! Could any 
style of reasoning, if reasoning it may be called, be more 
utterly contemptible ? 

*See their Letter to Congress. 



CHAPTEE XIII. 

Mr. Webster versus Mr. Webster. 

In the preceding chapter, Mr. Webster has been con- 
fronted with reason and authority; showing that "the 
greatest intellectual effort of his life" is merely a thing 
of words. In this, he shall be confronted with himself 
for, in truth, he is at war with himself, as well as with 
all the great founders of the Constitution of the United 
States. He is, in fact, too much for himself; and the 
great speech which, in 1833, he reared with so much pains 
and consummate skill as a rhetorician, he has literally torn 
to tatters. 

"If the States be parties" [to the Constitution], asks 
Mr. Webster, in that sj)eech, with an air of great confi- 
dence, "where are their covenants and stipulations? 
And where are their rights, covenants, and stij)ulation8 
expressed? The States engage for nothing, they promise 
nothing." On reading this passage, one is naturally 
inclined to ask, did Mr. Webster never hear of " the grand 
compromises of the Constitution" about which so much 
has been written? But what is a compromise, if it is not 
a mutual agreement, founded on the mutual concessions 
of the parties to some conflict of opinions or interests? 
Does not the very term compromise mean mutual promises 
or pledges ?\^Look at the large and small States in the 
Con vention oi""l7&7. We see, in that memorable strug- 
gle lor po'wer,~inie large States insisting on a large or pro- 
portionate representation of themselves in both branches 



IS DAVIS A TRAITOR? 95 

of the federal legislature; and we see the small States, 
AA'ith equal pertinaeity. cliii<j;inii- to the idea of an equal 
re^^i't-'^'^'iit lotion in lintli. Tlie sliniL:;<j;le is fierce and obsti- 
nate. The Convention is on the point of dissolution, and 
its hopes are almost extinguished. But, a comj)romise is 
suggested, considered, argued, and finally adopted; accord- 
ing to Avhich there is to be a proportionate representation 
of each State in one branch of the federal legislature, and 
an' equal re2)resentation in the other. These are the terms, 
Uhe covenants," "the stipulations," on Which the two 
classes of States agree to unite; these are their mutual 
promises. . 

The Siwne Thing is true in regard to all the other "grand 
compromises of the Coiistitution." It seems, indeed, that 
Mr. Webster could not well speak of these compromises, 
without using some such w^ord as terms, or covenants, or 
promises, or stipulations. Accordingly, if we turn to the 
general index to his works, in order to see how he would 
speak of the compromises of the Constitution; we shall 
be led to make a very curious discovery, and one which 
is intimately connected with an interesting passage of his 
political life. It will conduct us to a scene, in which "the 
beautiful vase," then "well known throughout the coun- 
try as the Webster Vase," was presented to that cele- 
brated statesman. Several thousand persons "had assem- 
bled at the Odeon, in Boston," in order to witness the 
presentation of that costly memorial, and to hear the 
reply of the great orator. "The vase," we are told "was 
placed on a pedestal covered with the American flag, and 
contained on its side the following inscription : 

presented to 
DANIEL WEBSTEE, 

The Defender of the Constitution, 

BY the CITIZENS OP BOSTON. 
October 12, 1835." 

Now this beautiful vase, so rich in its material and so 



96 IS DAVIS A TRAITOR? 

exquisite in its -workmanship, was presented to Mr. "Web- 
ster in honor of his great speech of 1833 ; in which he 
demonstrated to the entire satisfaction of the IsTew Eng- 
land universe, that it is absurd to call the Constitution ''a 
compact," or to speak of its "stipulations." Now I shall 
produce one extract from this speech at the Odeon, not 
onl}' on account of the striking contrast it presents to the 
doctrine of the speech of 1833, whose glories thousands 
were there assembled to celebrate, but also on account of 
the simple, solid, and important truth it contains. "The 
Constitution," says Mr. Webster, in that speech, "is 
founded on comjpromises, and the most perfect and absolute 
good faith, in regard to every stipulation op this 

KIND CONTAINED IN IT IS INDISPENSABLE TO ITS PRESERVA- 
TION. Every attempt to accomplish even the best purpose, 
every attempt to grasp that which is regarded as an 
immediate good, in violation of these stipulations, is full 

OF DANGER TO THE WHOLE CONSTITUTION."* Such glaring 

inconsistencies, and there are many of them in the wri- 
tings of the great orator, will be flaws and cracks in the 
vase of his reputation as long as his name is known. 

I^or is this the only instance in which Mr. Webster has 
spoken of the stipulations of the Constitution. "All the 
stipulations,'' says he, "contained in the Constitution in 
favor of the slave States ought to be fulfilled." f Here, then, 
are stif)ulation8 in favor of States, and made by States. 
"Slavery," says he, "as it exists in the States, is bej^ond 
the reach of Congress. It is a concern of the States them- 
selves; they have neve?' submitted it to Congress, and Congress 
has no rightful power over «Y."J Nor has the Federal Gov- 
ernment the rightful power over anything in relation to 
the States; unless this power was granted by the States, 
and so became one of the stipulations in the new "Arti- 
cles of Union," as the Constitution is called throughout 
the debates in the Convention of 1787. § 

*Works, vol. 1, p. 831. fWorks, vol- v. p. 347. Jlbid. 

gMadiaon papers, pp. 732, 734, 761, 861, 1118,1221, 1225. 



IS DAVIS A TRAITOR? 97 

■< 'The power of the Federal Government over commerco 
has been very justly called "the corner stone of the whole 
system.'' The Constitution originated, as we have seen, 
in the desire to estaldish a uniform and permanent system 
ofcommereial reguhitions, by which the hostile legislation | 
of Europe mi-lit be resisted, and the havoc of the interna- 
tional legishation of the States repaired. Whence did this 
great power, or rather this great system of powers, ema- 
nate'? '-The States" says ]\Ir. Webster, '' del agated_ their _ 
ichole authority oirr imports to the general government.'"^ In 
like manner, cxerj other power of the vast superstructure 
reared upon that Qorner stone, was delegated or conferred 
on the Federal Government by the States in tl^J^ArticleS; 
of Union." 

Mr. Webster and Mr. Justice Story say the Constitution 
speaks the language of authority to the States, saying you 
shall do this, or you shall not do that, and eschews the 
verbal forms of a compact. Very great stress is laid on 
this point. The Constitution, say they, is not "a compact 
between States," it is " the supreme law," as if the two 
things were utterly incompatible. But it is a rather unfor- 
tunate circumstance for this argument, that precisely the 
same language of authority is used in the old Articles of 
Confederation, which is universally admitted to have been 
a compact. "No State shall," is the style of the old Arti- 
cles of Union, "f as well as of the new; in this respect, 
thej'- are perfectly parallel. 

But here, again, ive may appeal fx-om Philip drunk to 
Philip sober, from Webster intoxicated with the fumes of 
a false theory of power to Webster under the influence of 
a simple view of truth. After having read the terms on 
which Texas was admitted into the Union, Mr. Webster 
asks, "Now what is here stipulated, enacted, secured?" thus 

*Works, vol. ii, p. 318. These words are quoted by Mr. Webster, 
with his expressed approbation. 
t See Articles V. and VI. 

6 



98 IS DAVIS A TRAITOR? 

admitting that the stipulations were enactments, or that the 
contract was a law. Nor is this all. For, having specified 
the stipulations in this case, he proceeds to say, "1 know no 
form of legislation which can strengthen this. I know no 
mode of recognition that can add a tittle to the weight of 
it. I listened respectfully to the resolutions of my friend 
from Tennessee. He jH-oposed to recognize that stipulation 
with Texas. But any additional recognition would weaken 
the force of it ; because it stands here on tlie ground of a con- 
tract, a thing done for a consideration. It is a law founded 
ON A CONTRACT WITH Texas." There is, then, after all, no 
incompatibility between a contract and a law! On the 
contrary, the very highest form of legislation may be that 
of a compact between sovereign States. It was thus, that 
Texas came into the Union; and, in consideration of cer- 
tain things promised to her, agreed to accept the Consti- 
tution of the United States as the supreme law of the land. 
It was thus also, that the original thirteen States, in view 
of certain advantages expected by them, and held out to 
them, conferred various powers on the Federal Govern- 
ment to be exercised for the common good. Each State, 
as it adopted the Constitution, virtually said to every 
other, I will abstain from the exercise of certain powers, 
and grant or delegate certain powers, according to all the 
stipulations of this instrument, provided you will do the 
same thing. I will neither coin money, nor emit bills of 
credit, nor enact laws impairing the obligation of contracts, 
nor do any other thing, which, in the view of the authors 
of the Constitution, has proved so injurious to the best 
interests of the country, provided you will abstain from 
the exercise of the same powers. And I will, on the other 
hand, consent that the General Government may regulate 
commerce, levy taxes, borrow money on the common 
credit, wage war, conclude peace, and do all acts and things 
as stipulated in the new "Articles of Union," provided 
you will delegate the same powers. Such was " the con- 



IS DAVIS A TRAITOR? &9 

tract, the thing done for a consideration." The great stip- 
ulation of all was, that the Constitution should be the 
supreme law of the land ; for that became the supreme 
law only by the mutual agreement of the States. But 
why argue a point so plain? How any man can look the 
Constitution in the face, or read its history, and then ask, 
where are its stipulations? is more than I can conceive. 
It does seem to me, that he might almost as well look into 
the broad blaze of noon, and then ask, If the' sun really 
shines, where are its rays? 

But if the Constitution is not a compact for the North, 
it is at least held to be binding, as such, on the South. 
The free States, said Mr. "Webster in 1850, "complain 
that, instead of slavery being regarded as an evil, as it 
was. then, it is now regarded by the South as an insti- 
tution to be cherished, and preserved, and extended." * 
"The North finds itself," he continues, "in regard to\ 
the relative influence of the South and the North, of the ^ 
free States and the slave States, where it did not expect 
to find itself, when they agreed to the compact of the 
Constitution." f Thus, after all, the States agreed I 

TO THE compact OF THE CONSTITUTION, Mr. WeBSTER HIM- j 
SELF BEING THE JUDGE. >^ 

Again, in 1851, Mr. "Webster says: "When the Consti- j 
tution was fi'amed, its framers, and the people who adop- \ 
ted it, came to a clear, express, unquestionable stipula- 1 
tion and compact." J In the same speech, he says: " These "' 
States passed acts defeating the law of Congress, as far as 
it was in their power to defeat it. Those of them to 
whom I refer, not all, but several, nullified the law of 1793. 
They said, in effect, ' we will not execute it. No runaway 
slave shall be restored.' Thus the law became a dead 
letter. But here was the Constitution and compact still 
binding; here was the stipulation, as solemn as words 

* Works, Vol. V. p. 359. fWebster's Works, Vol. V. p. 369. 
X Ibid, Vol. II. p. 574. 



100 IS DAVIS A TRAITOR? 

coiild form it, and which every member of Congress, every 
officer of the general government, every officer of the State 
government, from governors down to constables, is sworn 
to support."* Thus, in 1850 and 1851, it appears that Mr. 
"Webster had as completely forgotten "the greatest intel- 
lectual effort of his life," as in 1833 he had forgotten all 
the great intellectual efforts of Mr. Madison's life. The 
truth is, that Mr. Webster had became alarmed at the 
condition, of the country; because the North, which he 
had taught to deny that the Constitution is a compact, 
seemed resolved to reduce his theory to practice and give 
all its stipulations to the winds, provided they only stood 
in the way of their passions. Many of his former friends 
had, indeed, deserted and denounced him, because he 
would not go all lengths with them in disregarding the 
most solemn compact of the Constitution,, which all had 
sworn to support. Hence, he wished to retrace his steps j 
but he could not lay the mighty spirit of insubordination 
and rebellion which he had helped to arouse in the North. 
He could only plead, expostulate, and denounce in return. 

Accordingly, in the speech just quoted, he says: "It 
has been said in the States of New York, Massachusetts, 
and Ohio, over and over again, that the law shall not be 
executed. That was the language of Conventions in 
Worcester, Massachusetts ; in Syracuse, New York ; and 
elsewhere. And for this they pledged their lives, their 
fortunes, and their sacred honors. Now, gentlemen, these 
proceedings, I say it upon my professional reputation, 
are distinctly treasonable. Eesolutions passed in Ohio, 
certain resolutions in New York, and in Conventions held 
in Boston, are distinctly treasonable. And the act of 
taking away Shadrick from the public authorities in Bos- 
ton, and sending him off, was an act of clear treason." f 

The spirit of the resolutions which are here so emphat- 
ically denounced by Mr. Webster, afterward seized whole 

* Webster's Works, vol. ii, p. 675. f Ibid. p. 677. 



18 DAVIS A TRAITOR? 101 

States, and controlled their legislation."^ In fourteen of 
v the N orthern States, indeed, laws were eniicted to pre- 
vent the execution of the law of Congress. These laws, 
as Mr. Webster himself, if living, would have said, were 
, jJ'^TS ttnctly treasonable." They came directly into con- 
flict w ith the law of Congress, and nullified the compact 
,of the Constitution relative to fugitive slavesy/ What 
shall we say then? Was secession, under suCn *circum- 
stances, treason? Was it rebellion? Mr. Webster has, in 
one of his speeches, laid down a principle which never 
has been, and never can be, controverted. He says: "I 
do not hesitate to say and repeat, that if the Northern 
States refuse wilfully and deliberately to carry into effect 
that part of the Constitution which respects the restora- 
tion of fugitive slaves, the South would be no longer 
bound to keep the compact. A bargain broken on one 
side is broken on all sides." I have said, that this is a 
principle of truth and justice, which never has been, and 
never can be denied. It was, indeed, precisely the prin- 
ciple which governed the Convention of 1787 in with- 
drawing from the first compact between the States. I do 
not mean to say, however, that this great principle of 
truth and justice may not be practically denied. In fact, 
the Northern power has not only claimed, but exercised, 
the right to trample the compact of the Constitution 
under foot; and, at the same time, to visit with fii-e, SAVord, 
desolation, and ruin, those Avho merely wished to with- 
draw from the broken thing, and let it alone. 

According to the doctrine laid down by Story and Web- 
ster, if a compact between States assign no term for its 
continuance, then the States have a right to secede from 
it at pleasure.* This doctrine is, no doubt, perfectly true. 
But precisely such was the compact from which the South- 
ern States wished to withdraw ; no period was prescribed 
for its continuance. Yet the North, who had trampled it 
* See Chapter II. ' ' 



102 IS DAVIS A TRAITOR? 

under foot, punished the South with the most terrible of 
all wars ; because she was pleased to regard secession as a 
violation of that "most sacred compact." 

No man, as we have seen, could well be more inconsis- 
tent on any subject, than "the great expounder" was in 
relation to the most important of all questions respecting 
the Constitution. It was, with him, either a compact 
between the States, or not a compact between the States, 
according to the exigencies of the occasion. He could be 
equally eloquent on both sides of the question. He com- 
plained, in 1850, that the South had changed her opinions 
on the subject of slavery. Might not the South complain, 
that he had no opinions, or at least no convictions, to 
change? The man who really seeks the truth, and, when 
found, clings to it as the choicest treasure of his soul, may 
well leave his consistency to take care of itself. But the 
man who seeks place, or power, or popularity more than 
the truth, should indeed have a good memory. The one 
may, and indeed will, sometimes change his opinions, but 
then, in the midst of all his changes, he will be ever true, 
like the needle, which only turns until it finds the pole. 
Whereas the other, in his variations, is like the weather- 
cock, which shifts with the breeze of the passing hour, and 
never finds a point of permanent rest. Even the intellect 
of a Webster, where Ihe moral man is deficient, can fur- 
nish no exemption from this law of retributive justice. 

Mr. Webster's real opinion, however, seems to have 
been that the Constitution was a compact between the 
States. His great speech of 1833 may have convinced 
others ; it certainly did not convince himself; for during 
the remainder of his life, he habitually and constantly 
spoke of the Constitution as the compact formed by the 
States. Especially after his race was nearly run, and, 
instead of the dazzling prize of the Presidency, he saw 
before him the darkness of the grave, and the still greater 
darkness that threatened his native land with ruin; he 



IS DAVIS A TRAITOR? 103 

raised the last solemn utterances of his mighty voice in 
behalf of "the compact of the Constitution;" declaring 
that as it had been " deliberately entered into by the 
States," so the States should religiously observe "all its 
stipulations." 



CHAPTER XIY. 

The absurdities flowing from the Doctrine that the Constitution is not a Compact 
be iween the States^ but was made by the Fecple of America as one Nation. 

"When I come to consider "the sovereignty of the peo- 
ple," about which so much has been said, M'e shall see the 
fallacy of the position, which is everywhere assumed by 
Mr. Webster and his school, that " the aggregate commu- 
nity, the collected will of the people, is sovereign."* We 
shall then see, that this doctrine is utterly without foun- 
dation in history, and without support from reason. On 
the contrary, it will then be rendered manifest, that the 
people of Asaeriea have never existed as one nation, 
clothed ivith sovereign axithority ; an idea which has no foun- 
dation in fact, and which has grown out of the popular use 
of* language and the passions of politicians. But, at pre- 
sent, I merely wish to point out a few of the absurdities 
flowing from this doctrine, that the Constitution was 
ordained by "the aggregate community, the collected will 
of the people" of America, acting as one sovereign politi- 
cal society. This argument alone, this reductio ad ahsxir- 
du77i, is amply sufficient, unless I am gretftly mistaken, to 
shatter that already shattered hypothesis. 

Mr. Justice Story, quoting the Declaration of Independ- 
ence, says: "It is the right of the people, (plainly 
intending the majority of the people,) to alter, or to abolish 
it, and to institute a new government, laj'ing its foundation 
on such principles, and organizing its powers in such forms, 

* Works, Vol. vi., page 222. 



IS DAVIS A TRAITOR? 105 

as to them shall seem most likely to eifect their safety and 
happiness." * ^ow this is what is meant by the sover- 
eignty of the people in America. But will any one contend, 
that the people of the United States, that is, a majority of 
them, may alter, or amend, the government of the Union? 
If they are, indeed, one people in the political sense of the 
Avord, then are they sovereign ; and if as such they made the 
Constitution of the United States, then, according to all our 
American ideas and doctrines, they have the right to alter 
or amend that Constitution at their pleasure. Nay, more; 
they have the right to pull down the existing government, 
and to set np a new one in its place. But who will accept 
such a consequence? This right of sovereignty, if it 
exist, or if the one people exist to whom it naturally 
belongs, it is, according to the universally received doc- 
trine of this continent, inherent and inalienable. No laws 
or constitutions can take it away, or abridge and limit its 
exercise. Who will say, then, that the people of the United 
States, " plainly meaning the majority of them," have 
such a right or authority ? No one. Plainly and inevita- 
bly as this consequence flows from the fundamental posi- 
tion of Story and Webster, that the sovereign people of 
America ordained the Constitution, it will be avowed by 
no one, who has any reputation to lose, and who has the 
least respect for the reputation he possesses. Mr. Lincoln 
has avowed this consequence. But in this instance, as in 
many others, his logic has taken advantage of his want of 
information. 

This consequence flows so naturally and so necessarily 
from the premises, that Mr. Justice Story has, in one place, 
inadvertently drawn it ; or rather it has incidentally 
drawn itself " The people of the United States," says 
he, "have a right to abolish, or alter the Constitution 
of the United States." f True, if they made it; but they 
did not make it, and therefore they have the right neither 

* Vol. i., Book iii., chap. iii. f Vol. i., Book iii., chap. iii. 
6* 



106 IS DAVIS A TRAITOR? 

to alter nor to abolish it. The power that made, is the 
power to unmake. Mr. Justice Story did not mean, that 
is, he did not deliberately mean, that the people of the 
United States, or the majority of them, could alter or 
abolish the Constitution ; for he was too well informed to 
be capable of such a blunder. But in this instance, as in 
many others, his logic, speaking the language of nature 
and of truth, got the better of his artificial and false 
hypothesis. 

If the people of the United States are, in reality, one 
sovereign political community, and as such, ordained the 
Constitution, then they have the most absolute control 
over all the pai'ts; and the States bear the same relation 
to this one grand and overshadowing sovereignty, that 
counties sustain to a State. They may be divided, or 
moulded, or abolished, at the pleasure of the whole people. 
But everybody knows better than this. Mr. Lincoln did, 
it is true, endorse this conclusion, in the first sj^eech he 
ever made to the American public. When the long silence 
was broken, and, as President elect, he addressed his first 
word to an anxious country, he likened the relation 
between the States and the Union to that of counlJies to a 
State. Until then, there were many intelligent *id well- 
informed persons, who did not believe, that there was one 
individual in the United States capable of taking such a 
view of the Constitution, except among political preachers 
or parsons.* But however absurd, it is only the necessary 
consequence of the premises laid down by Mr. Justice 
Story and Mr. Webster. It will, however, be regarded by 
ever}^ student of the Constitution in the light of a reductio 
ad ahsurdum, which, instead of establishing the conclusion 
to which it leads, only shatters and demolishes the position 
from which it flows. 

* Indeed, this doctrine, and the very illustration of it, was bor- 
rowed by Mr Lincoln from the celebrated Preacher of Princeton, 
N. J. Compare Mr. Lincoln's speech with Dr. Hodge on "the 
State of the Country." 



CHAPTEE»XY. 

The hypothesis that the people of America form one Nation. 

We have seen, in the preceding chapter, some of the 
absurdities flowing from the assumption, that the people 
of America form one nation, or constitute one political 
community. But as this is the ft^o-tov rcaivSo^, the first and 
all-comprehending falsehood, of the Northern theory of 
the Constitution, by which its history has been so sadly 
blurred, if not obliterated, and by which its most solemn 
provisions have been repealed, so we shall go beyond the 
foregoing reductio ad absurdum, and show that it has no 
foundation whatever in the facts of history. I was about 
to say, that it has not the shadow of such a foundation; 
but, in reality, it has precisely such a shadow in the vague 
popular use of language, to which the passions of inter- 
ested partisans have given the appearance of substance. 
And it is out of this substance, thus created from a shadow, 
that have been manufactured those tremendous rights of 
national power, by which the clearlj^-reserved rights of the 
States have been crushed, and the most unjust w^ar of the 
modern world justified. I purpose, therefore, to pursue 
this Tt^otov Ttaivbo^, this monstrous abortion of night and 
darkness, into the secret recesses of its history, and leave 
neither its substance nor its shadow in existence. For- 
tunately, in the prosecution of this design, it is only neces- 
sary to cross-examine those willing witnesses by whom 
this fiction has been created, and compare their testimony 
with itself, in order to show that they are utterly unwor- 



108 IS DAVIS A TRAITOR? 

thy of credit as historians of the American Union. I shall 
begin with Mr. Justice Story. 

The attempt of Mr. Justice Story to show, that the people 
of America formed one nation or State. 

This celebrated commentator strains all the powers of 
language, and avails himself of every possible appearance, 
to make the colonies of America " one peeple," even 
before they severed their dependence on the British 
crown. Thus, he says : " The colonies were fellow- 
subjects, and for many purposes one people. Every colo- 
nist had a right to inhabit, if he pleased, in any other 
colony; and as a British subject, he was capable of inher- 
iting lands by descent in every other colony. The com- 
mercial intercourse of the colonies, too, was regulated by 
the laws of the British empire ; and could not be restrained, 
or obstructed, by colonial legislation. The remarks. of 
Mr. Chief Justice Jay On this subject are equally just and 
striking: 'All the people of this country were then 
subjects of the king of Great Britain, and owed allegiance 
to him ; and all the civil authority then existing, or exer- 
cised here, flowed from the head of the British empire. 
They were, in a strict sense, fellow-Buhjeets, and in a 
variety of respects, one people.'"^ 

Now all this signifies just exactly nothing as to the 
purpose which the author has in view. For, no matter in 
what respects the colonies were "one people," if they 
were not one in the political sense of the words ; or if they 
had no political power as one people, then the germ of the 
national oneness did not exist among them. But this is 
conceded by Mr. Justice Story himself " The colonies," 
says he, " were independent of each other in respect to 
their domestic concerns." f Each was independent of the 
legislation of another, and of all the others combined, it 
they had pleased to combine. 

* Story on the Constitution, vol. i, page 164. f Ibid. 



IS DAVIS A TRAITOR? 109 

In many respects, indeed, the whole human race may be 
said to be one. They have a common origin, a common 
psychology, a common physiology, and they are all sub- 
jects of the same great Ealer of the world. But this 
does not make all men "one people" in the political 
sense of the words. In like manner, those things which 
the colonists had in common, and which are so care- 
fully enumerated by Mr. Justice Story, do not make 
them one political community ; the only sense in which 
their oneness could have any logical connexion with 
his design. Nay, so palpably is this the case, that he 
fails to make the impression on his own mind, which 
he seems so desirous to make on that of his readers; 
and the hypothesis that the colonies were " one people," 
is utterly dispelled by his own explicit admission. For, says 
he, " Though the colonies had a common origin, and owed 
a common allegiance, and the inhabitants of each were 
British subjects, they had no direct political connexion with 
each other. Each was independent of all the others; each, 
ift a limited sense, was sovereign within its own territory. 
There was neither allegiance nor confederacy' between 
them. The Assembly of one province could not make 
laws for another, nor confer privileges which were to be 
enjoyed or exercised in another, farther than they could 
be in any independent foreign state. As colonies, they 
were also excluded from all connexion with foreign states. 
They were known only as dependencies, and they followed 
the fate of the parent country, both in peace and war, 
without having assigned to them, in the intercourse or 
diplomacy of nations, any distinct or independent exist- 
ence. They did not possess the power of forming any 
league or treaty among themselves, which would acquire 
an obligatory force, without the assent of the parent State. 
And though their mutual wants and necessities often 
induced them to associate for common purposes of defence, 
these confederacies were 6f a casual and temporary nature, 



110 IS DAVIS A TRAITOR? 

and were allowed as an indulgence, rather than as a 
right. They made several efforts to procure the estab- 
lishment of some general superintending government over 
them all : but their own diifcrences of opinion, as well as 
the jealousy of the crown, made these efforts abortive." * 

It is impossible for language to be more precise and 
explicit. Hence, in whatever other respects the colonies 
may have formed " one people," we are here authorized, 
by the undisputed and the indisputable facts of histor}^, to 
consider them as separate and independent of each other, 
in the political sense of the terms. And this is all our 
argument needs. 

Mr. Justice Story, not satisfied with the oneness of the 
people of the colonies before their separation from Great 
Britain, which he has been at so much pains to establish, 
next endeavors to show, that they were certainly moulded 
into one nation by the Declaration of Independence. If 
they were "one people" before, it is difficult to conceive 
how they were made so by that Declaration. To that act, 
says he, " union was as vital, as freedom or independence." f 
But what sort of union? Did the people unite and 
become one nation, in the sense that it was a sovereign 
political community ; so that the whole could make a Con- 
stitution and laws for the parts ? If not, then the assertion 
misses the mark aimed at, and must go for nothing. But 
no one pretends, for a single moment, that they became one 
people in any such sense of the words. Mr. Justice Story 
himself admits, that such union was temporary, and design- 
ed to perish with the common danger which had called it 
into existence. " The union thus foi-med," says he, " grew 
out of the exigencies of the times ; and from its nature 
and objects might be deemed temporory, extending only 
to the maintenance of the common liberties and independ- 
ence of the States, and to terminate with the return of 



* Story on the Coiistitution, vol. i, page 163-164. 
t Vol. i., Book xi., chap. 1, page 20D. Note. 



IS DAVIS A TRAITOR? Ill 

peace with Great Britain, and the accomplishment of the 
ends of the revohitionary contest."* Thus it is conceded 
that they became " one people," not to ordain a Constitu- 
tion or to enact laws, but only to resist a common enemy, 
and to continue united only during the presence of the 
common danger. Hence, this union was, according to 
Judge Story's own admission, more imperfect and fragile 
than that which, from the operation of a similar cause, had 
sprung up among the States of Greece, the Swiss Cantons, 
the United Netherlands, or the members of the German 
Diet. Yet no one has ever considered any one of these 
unions as forming one nation, or people, as contradistin- 
guished from a tederation of sovereign and independent 
States. Such attempts, indeed, to prove that the colonies, 
or the States of America were one nation, or political com- 
munity, are simply desperate. They are scarcely made, 
before they are overthrown by the hand that reared them. 
But let us admit, for the sake of argument, that the col- 
onies formed one people before their separation from Great 
Britain, and that they were again made one people by the 
Declaration of Independence. Then no one colony could 
lawfully act without the concurrence of the others ; as the 
parts would not be independent of the whole. Accord- 
ingly, Mr. Justice Story declares, that the " the colonies 
did not severally act for themselves, and proclaim their 
own independence." f But it is well known, that Virginia 
wdid so. -/'■ Virginia," says .Judge Story, " on the 29th .Tune, 
fl776, (five (la}'s l)rt'or(.' the Drclurat ir>ii of Indcjiendcncc,) 
declared tlir i;-(>v(M'niiu'iit ot' the <M)iiiitry as foi'uially exer- 
cisr(l uiidci- the crowii of (Ireat V>y\{'A\\\. tutidlij dissolved, 
and procccMli'd to form a new Constitution." ^ Kay, she^___ 
had already formed a new Constitution, in pursuance of 
her resolution of the 15th of the preceding month, and she 
■ adopted it on the 29th of June, 17TG. Yet Virginia has 



* Vol. i., Book ii., chap, li., page 209. 

t Vol. i., Book ii., chap, i., page 197. % Ibid. 



112 IS DAVIS A TRAITOR? 

never been regarded as tainted with treason, or rebellion, 
against the people of America, because she thus proclaimed 
her own separate independence, and established her own 
Constitution. On the contrary, she has ever been honored 
by her sister colonies and States, for this bold and inde- 
pendent act. 

This is not the only insuperable dif3Sculty in the way of 
the hypothesis, that the colonies were made one people 
by the Declaration of Independence. For, if this hypo- 
thesis be adopted, we must believe that this one people 
were afterwards broken up into separate and independent 
States_ by an act of Confederation ! In the ease of 
Gibbons and Ogden, *the Supreme Court of the United 
States, say, (and the words are quoted with approbation 
by Mr. Justice Story,) f" As preliminar}^ to the very able 
discussion of the Constitution which we have heard from 
the bar, and as having some influence on its construction, 
reference has been made to the situation of these States, 
anterior to its formation. y( lt has been frnid. that _th e j/ i vere 
sovereign, were^ comjAeteli/ independent, and were connected 
icith each other only by a league. Tins is true.''|5CN'ow, if 
iTiiS^'be true, as the Supreme Court of the United States 
affirm, and as Mr. Justice Story admits, how were this one 
people broken up into so many separate, "sovereign," and 
" completely independent" States? This must have been 
done by the Articles of Confederation ; since it is only in 
the presence of these Articles, that this fine theory about 
the oneness of the American people disappears, and the 
States once more shine out as free and independent sov- 
ereignties. No other cause can be assigned for the change. 

It is perfectly certain, indeed, that if the people of 
America wei-e one nation, or political community, prior to 
the adoption of those Articles, they then became divided 
into separate, distinct, and independent States. For, 

* 6. Wheaton, page 187. f Vol. i., page 323. 

X Vol. i., Book ii., chap, iii., page 323. 



IS DAVIS A TRAITOR? 113 

according to those AvtiQ\e&f^^'<£^h^tafe^reta^^ ^^ 

leignfy, freedom, and independence.'' Each State retains! 
!This""]ani--ua<a' inii)Iies, inJeett, tliat each State was free, 
g^yeri.'igii ami i ndependent beib re those Articles were 
adopted. 15ut then this is only one of the difficulties in 
the way of the theory of Judge Story. 

If thej' were not free and sovereign States before, if, on 
the contrary, they Avere one people, or nation, or political 
comraunit}", then it were absurd to 8j)eak of their union 
as an act of confederation. For it would, indeed, have 
been an act of separation, and not of confederation. It 
would have been the dividing of one nation into separate 
and sovereign States, and not .the uniting of such States 
into one Confederacy. This is another of the difficulties, 
which stand in the way of the theory of Judge Story, and 
of the Northern school of politicians. 

Again, if one people were thus divided into^free, sover- 
eign and independent States, by the Articles of Confedera- 
tion ; then it is very inaccurate in Judge Story, to say, as 
he always does, that the States granted the powers by 
which the Confederacy was formed. He should, on the 
contrary, have spoken only of powers resumed by the 
States, or restored to them by the American people. 

But we may now take leave of his theory and all its 
insuperable difficulties. It is sufficient for my purpose, 
that after the Articles of Confederation were agreed upon, 
as the supreme law, the States were then free, sovereign 
and independent ^It is assert ed by t he Supreme Court of 
the United Statcf as well as by Judge Story himself, that" 
aiftVlTb'r to the adoption of the Constitution the States 
'ITll-r siTirmju. ircrt' coinphtiJij independent, and were eon- 
nectrd otdy ]nj it Iciiji/r." It was in this capacity, it was as 
iVee, soverein'M and eonipletely independent States, that 
they laid aside the old, and entered into the new, "Arti- 
cles of Union," as the Constitution is everywhere called 
in the proceedings of the Convention of 1787. This is 



114 IS DAVIS A TRAITOR? 

conceded. Hence, the situation of the colonies before their 
separation from the mother country, or of the States 
before the adoj)tion of the Articles of Confederation, has 
nothing to do with our present inquiry ; which relates to 
the character in which the people, or the peoples of 
America, ordained the Constitution of the United States. 
If any one has a mind to amuse himself by building up or 
pulling down speculations or hypothesis on this subject, 
he may do so to his heart's content. It is sufficient for 
every practical purpose, that when they came to adopt 
the new form of government, each State was a completely 
free, sovereign, and independent political community, and 
in that capacity acceded to the compact of the Constitu- 
tion. 

The attempt of Mr. Curtis to show that the people of Amer- 
ica formed one nation, or political community. 

m 

Mr. Curtis, in his extended and elaborate History of the 
Constitution of the United States, seems to vie with the 
introductory sketch of Judge Story, in the establishment 
of the foregone conclusion, that it was created by and 
rests on, "the political union of i\\e people of the United 
States, as distinguished from the States of which they are 
the citizens."* For this purpose, it is necessary to show, 
in the first place, that such a political union of the whole 
people of the country had an existence. Accordingly, the 
facts of history are recast and moulded in order to suit 
this hypothesis. If possible, the conflict between fact and 
theory is, in his work, even more glaring than it is in that 
of Mr. Justice Story. 

"The people of the different colonies" were, says he, 
"in several important senses, one people." f 

This is true. But it is not even pretended, by Mr. Cur- 
tis, that this was a political union ; he only says, that it 
enabled them to effect such a union. He admits, on the 

*Vol.i, p. 122. t Vol. i, p. 9. 



IS DAVIS A TRAITOR? 115 

contrary, in the most explicit terms, "that the colonies 
had. no direct political connexion with each other before 
the Revolution commenced, but that each was a distinct 
community, with its own separate political organization, 
and without any power of legislation for any but its own 
inhabitants ; that, as political communities, and upon the 
principles of their organizations, thej^ possessed no power 
of forming any union among themselves, for any purposes 
whatever, without the sanction of the Crown or Parlia- 
ment of England."* 

"It is apparent," says he, "that previously to the Decla- 
ration of Independence, the people of the several colonies 
had established a national government of a revolutionary 
character, which undertook to act, and did act, in the 
name and with the general consent of the inhabitants of 
the country."f Thus, even previous to the Declaration 
of Independence, the people of the colonies formed one 
nation, and established "a nationtil government." A 
nation, with a national government, and yet dependent 
colonies! 

"This government," says he, "was establishad by the 
Union in one body of delegates representing the people 
of each colony." That is, each colony, acknowledged to be 
perfectly and wholl}^ independent of every other, sends 
delegates to one body ; and this body, whose duty it is to 
advise and recommend measures to the several colonies, is 
"a national government!" Surely, if such an advisory 
council may be called a government at all, it is any thing 
rather than national in its character. It is, in fact, merely 
the shadow of a federal government. 

Mr. Curtis himself is evidently not satisfied with the 
" one nation," in this stage of its development, or purely 
verbal existence. Hence, he insists, with Mr. Justice 
Story, that the colonies were really made one nation by 
the Declaration of Independence. " The body by which 

* Vol. i, p. 9. fVol. i, p. 39. ' 



116 IS DAVIS A TRAITOR?- 

this step was taken," says he, "constituted the actual gov- 
ernment of if/ie nation, at the time;"* that is, while they 
were yet dependent colonies! "It severed the political 
connexion between the people of this country and the peo- 
ple of England, and at once erected the different colonies 
into free and independent States." f Thus, the colonies 
formed "one nation" before their separation from Great 
Britain, and afterwards became "free and independent 
States." Or, in other words, the nation preceded the 
States; an opinion for which Mr. Lincoln has been most 
unconscionably laughed at. This opinion is still more 
explicitly advanced by Mr. Curtis, in another portion of 
his history. "The fact," says he, "that these local or 
State governments w^ere not formed until a Union of the 
people of the different colonies for national purposes had 
already taken place, and until the national power had 
authorized and recommended their establishment, is of 
great importance in the Constitutional history of our 
country; for it shows that no colony, acting separately 
for itself, dissolved its own allegiance to the British crown, 
but that this allegiance was . dissolved by the sujDreme 
authority of the people of all the colonies," &c., &e. J 
This fact, which is deemed of so much importance in the 
constitutional history of this country, happens, as we 
have seen, to be a fiction; and a fiction, too, in direct con- 
flict with the well-known fact, that Yirginia declared her 
own separate independence. 

But if, by the Declaration of Independence, the colonies 
became "free and independent States," how could that act 
have moulded them into one sovereign political commu- 
nity, or nation? This is one of the mysteries, which I 
am glad it is not incumbent on me to solve. "Was the 
Declaration of Independence itself necessarily, or ex vi 
termini, a declaration of independence, and, at the same 
time, one of subjection to a higher authority? If we 

* Vol. i, p. 61. ^ t Ibid. % Vol. i, pp. 39, 40. 



IS DAVIS A TRAITOR? 117 

may adopt Mr. Curtis as a guide, we must answer this 
question in the affirmative. For, says he, although the 
colonies were thereby "erected into free and independent 
States," "the people of the country became henceforth 
the rightful sovereign of the country; they became uni- 
ted in a national corporate capacity, as one people; they 
could thereafter enter into treaties and contract alliances 
with foreign nations, could levy war and conclude peace, 
and do all other acts pertaining to the exercise bf a national 
sovereignty.'"^ If so, then of course they could ordain 
Constitutions and enact laws; they could set up, or pull 
doAvn, or modify the parts, called States, as if they were 
counties, or mere districts of people. For such is the 
power of one sovereign State, or nation, over its various 
members. 

But, unfortunately for this bold assertion, Mr. Curtis 
himself tells us, on the very next page of his work, that 
" on the same day on which the committee for preparing 
the Declaration of Independence was appointed, another 
committee, consisting of a member from each colonj^, was 
directed to prepare and digest the form of a confederation to 
he entered into between these colonies," that is, after they 
should become free and independent States. " This com- 
mittee, he continues, "reported a draft of Articles of Con- 
federation on the 12th of July, &c." These Articles were 
discussed, postponed, resumed, amended, and, finally, 
adopted. 

Now whence resulted the powers conferred by these 
Articles of Confederation? Were they not granted by 
the "free and independent States"? Most assuredly they 
were ; no one has ever had the hardihood to deny so plain 
a fact, except by implication. But if all the powers of 
the new "national government/' as it is called by Mr. 
Curtis, were granted by "free and independent States," 
each acting for itself, as every one acknowledges it to 

* Vol. i, p. 52. \ : : 



118 IS DAVIS A TRAITOR? 

have done; then for what conceivable purpose has he con- 
jured up the phantom of a pre-existing national sover- 
eignty of the whole people of the country? 

It is certain, that this phantom has been completely 
laid by Mr. Curtis himself The whole elaborate illusion, 
which it has cost him so much pains to get up, is thus 
dispelled by a plain, simple and unpremeditated state- 
ment of unquestionable facts, by the author himself. 
"The parties to this instrument," says he, refei-ring to the 
Articles of Confederation, "were/ree, sovereign and inde- 
pendent political communities^ — each possessing within itself 
all the powers of legislation and government over its own 
citizens, which any political society can possess. But, by 
this instrument, these several States became united for cer- 
tain purposes." * Surely, all this must have been absent 
from the mind of Mr. Curtis, when he spoke of the peo- 
ple of the several States as having been previously 
merged into one absolutely sovereign political community. 
But it seems to be requiring too much to gxpect a Massa- 
chusetts politician to remember any thing he may have 
said on any preceding page of his work. 

Nor is this all. For it is also conceded that the States, 
which were "free, sovereign and independent political 
communities" before they adopted the Articles of Confed- 
eration, retained the same prerogatives, or attributes, 
after that event. "The Articles," says he, "declared, — as 
would indeed be implied, in such circumstances, without any 
express declaration, — that each State retained its sovereign- 
ty, freedom, and independence."f It was, then, in this 
condition of "free, sovereign, and independent political 
communities," that the States passed from the old to the 
new Articles of union, or severally agreed to the compact 
of the Constitution. Why, then, conjure up shadows and 
phantoms of a national unity only to dispel them ? The 
cause of secession only demands the fact, that the States, 

* Vol. i, p. 143. Ym^. ~ 



IS DAVIS A TRAITOR? 119 

as "free, sovereign, and independent political communi- 
ties," formed and entered into the new ^'Articles of 
Union;" and this fact is conceded both by Story and 
Curtis. 

The use of the term people. 

Much of the inconsistency and contradiction in the 
views above examined, is due to the ambiguities of the 
word people, and the utter confusion of its loose, floating 
significations, with its technical or scientific sense. We 
sometimes pronounce a people one, because they have a 
common origin, or a common language, or a common 
religion, or even because they inhabit the same portion 
of the globe. Thus, we speak of "the people of Europe," 
or "the people of America," without intending to convey 
the idea that they are a people in the political sense of the 
term. "When we say, however, that " the people are sov- 
ereign," we use the word in a more restricted sense. We 
then sjaeak of the people in .the political or technical 
sense of the term. 

This includes only the qualified voters of the commu- 
nity, or those by whom Constitutions may be ordained, 
and re-modelled. For no other persons participate in the 
exercise of the sovereign power. Women and minors are 
excluded, as well as some other classes, even in our Amer- 
ican States. It is in this limited sense of the word, that 
the people are said to make compacts, or Constitutions and 
laws, either by themselves or by their agents. 

If Mr. Justice Story had borne this in mind, he might 
have saved himself from all his criticisms on the doctrine 
of a social contract based on the ground that " infants, 
minors, married women, persons insane, and many others,"* 
take no part in the formation of civil societies, or in the 
'creation of constitutions and governments. No one 
includes such persons in the idea of a people, when these 

* VoL i., Book iii., chap, iii., page 296. 



120 IS DAVIS A TRAITOR? 

are said to be sovereign. Hence, his "limitations and 
qualifications " of the doctrine in question, have exclusively- 
arisen from his own misapprehension. Something more 
than a mere natural person is necessary to constitute one 
of " the people," one of the multitudinous sovereignty of 
an American State. " The idea of a people," says Burke, 
evidently using the term in its restricted or political sense, 
"is the idea of a corporation; it is wholly artificial, and 
made, like all other legal fictions, by common agreement."* 
That is, says he, " in a rude state of nature, there is no 
such thing as one people. A number of men, in themselves, 
can have no collective ca^jacity," Or, in other words, some- 
thing more than a number of men is necessary to make a 
people, or State. It must be agreed and settled, as to 
who shall take part in the exercise of political power, ere 
constitutions and laws may be ordained or remodelled by 
them. 

But in vain did Burke, and Hobbes, and other writers 
on the philosophy of politics, endeavor to " fix, with some 
degree of distinctness, an idea of what we mean when we 
say, the People." f Their labors seem to have been lost 
upon the politicians of the Massachusetts school ; and, in 
some instances, at least, they appear to have only cast 
their pearls before swine. For one of the great lights of 
that school kindles into a blaze of fiery indignation against 
Mr. Burke, for simply advancing the incontestable truth, 
that what we call a People is, in the political sense of the 
word, the result of an agreement or mutual understanding 
of a community of persons. "O, that mine enemy had 
said it!" the admirers of Mr. Burke may well exclaim," 
cries this great light of Massachusetts. " 0, that some 
scoffing Voltaire, some impious Eousseau had uttered it ! 
Had uttered it ? Eousseau did utter the same thing, &c." l^ 
This is true. For widely as Edmund Burke and Eousseau 

* Appeal from the New to the Old Whigs. t Ibid. 

X Everett's Orations and Speeches, vol. i., page 122. 



IS DAVIS A TRAITOR? 121 

differed on most points, they agreed in this, that it is not 
nature, but art, which determines the question, as to who 
shall participate in the exercise of political power, or con- 
stitute a People, in the political sense of the word. Even 
" the impious Rousseau" is sometimes right, and nearly, if 
not quite, always so when he agrees with Edmund Burke. 

In his attempt to show that the Constitution was 
adopted by the people, and not by the States, Mr. Justice 
Story deceives himself by means of the ambiguities of the 
term people, and repeatedly contradicts his own positions. 
" The States never, in fact," says he, " did, in their polit- 
ical cajDacity, as contradistinguished from the people 
thereof, ratify the Constitution."* This is very true, if 
by States in their political capacity, he means, as he seems 
to do,j the State governments. But this is not to the pux"- 
pose> Eveiy one admits, that the Constitution was ratified, 
not by the Governments, but by the i^epple of the Statea^y 
ISov does any one deny, that the term State is sometimes/^ 
used to signify the government of a State. Thus, we 
often say, that the State does so and so, when the thing is 
done by its Government. ^, But the question is. may we not 
say. that the Constitution was ratified b}^ the States, as 
well us by the people of the .States? Or, in other words, 
ai'e not the terms State and People properly used as equiv- 
alent expressions? These words Avere, as Ave have already 
most abundantly seen, habitually used as couA'crtible terms 
b}' the CouA'ention of 1787. -. 

"\Ye may truly say, indeed, Avith Judge Storj", that the 
Constitution was not ratified by the States, as contradis- 
tinguished from the people; because it is not very easy to 
distinguish a thing from itself In assuming this position, 
Mr. Justice Story forgets what he had said in the prece- 
ding Book of his Commentaries, namely, "the State and 
the people of the State, are equivalent expressions. "f 
"Nay, the State," he again says, "by which we mean the 

*Vol. i., page 330. f "Vol. i, Book ii, p. 198. 

7 



122 IS DAVIS A TRAITOR? 

people composing the State, may divide its sovereign 
po^wers among various functionaries, &c."* Here the term 
2)eople is clearly used to include only the qualified voters, 
or those who share the sovereign power; and, in this 
sense, they are called "the State." It is precisely in this 
sense, that the Constitution was ratified by the peoples, 
or the States. We may, and indeed should, distinguish 
between the meanings of the term State, when it is figura- 
tively used to signify the government of a State, and 
when it is used to signify the State itself. But we shall 
never distinguish the people of a State from the State 
itself, until we can find a State which is not composed of 
people. 

But the attempt is made to show, that, in adopting the 
Constitution, the States acted as mere districts of people, 
and not in their sovereign political capacity- .f But if this 
were so, then the different districts would have been con- 
sidered together in making up the final result, and the 
majority of the one grand,, national whole would have 
ordained the Constitution. ,<^]u' fact, however, the unde- 
nied and the undeniable fact, is quite otherwise. Each 
State, with all its own laws, and institutions and govern- 
ment, cither went in, or remained out, at its own sovereign^ 
will and pleasure. In the words of the Federalist, it was 
"only to be bound by its own voluntary act,"/ Xo other 
State, nor all other States combined, nor the ■vvhole people 
of America, had the least authority to control its decision- 
This was an absolutely free, sovereign and independent 
act of each State. It may be doubted, indeed, if there was 
ever a more superficial gloss, or a more pitiful subterfuge, 
than the assertion of Judge Story, that the States adopted 
the Constitution, not as States, but only " as districts of 
people " composing one great State or nation. It is at 
war with facts ; it is at war with his own repeated admis- 
sions ; and it is at war with the plainest dictates of truth, 

*Ibid. p. 194. t Story's Com. on the Constitution, vol. 1, p. 330- 



IS DAVIS A TRAITOR? 123 

as well as with the unanswerable ai'guments of the Fed- 
eralist. Sad, indeed, must have been the condition to 
which the great sophist was reduced, when he could stoop 
to so palpable a gloss on one of the plainest facts in the 
history of the Constitution! 

CONCLUSION. 

Mr. Justice Stor}^ has, I am aware, as well as Mr. Web- 
ster, laid great stress on the fact, that the Constitution 
addresses the language of authority to the States. " The 
language of a compact is," says he, " I will, or will not do 
this; that of a law is, thou shalt, or shalt not do it."* 
This is what the act of entering into a compact signifies, 
but it is not usually the language of the instrument itself. 
On the contrary, the Articles of Confederation, which are 
universally admitted to form a compact, use precisely the 
same style as the Constitution. Both say what shall, and 
what shall not, be done by the States. Precisely the same 
style is also employed in the formation of compacts or 
treaties between wholly separate and independent powers. 
Nay, in the most ordinary articles of co-partnership, it is 
usual to say, in the same manner, what shall, and what 
shall not, be done by the parties thereto. Yet all such 
instruments rest upon the agreement of the parties, and 
derive their binding force from their voluntary act. 

There is a very sim2)le law of language, which seems to 
have escaped the attention of these great expounders of 
the Constitution. The language of written contracts usu- 
ally speaks of the parties in the third person, and not for 
them in the first person. Hence, they necessarily assume 
the imperative style ; laying down what shall, and not say- 
ing what will, be done b}^ them. It would have been 
ridiculous, indeed, if the Constitution had said, No State 
will emit bills of credit, or coin money, and so forth, instead 
of saying, as it does, that no State shall do such acts. 

* Vol. i, p. 308. ' 



124 IS DAVIS A TRAITOR? 

Like other written contracts, it says shall, of course, be- 
cause it speaks of the parties in the third person, and 
lays down the obligations imposed upon them by their 
own consent. This is a very simple law of language. 
But that is no reason why it should be overlooked by the 
great lights of jurisprudence. 

"In compacts," says Judge Story, "we ourselves deter- 
termine and promise, what shall be done, before we are 
obliged to do it." No words could more admirably suit 
our purpose, or the facts of the case. For each State 
agreed to the compact of the Constitution, which pre- 
scribes "what shall be done," before it was bound b}^ it. 
That "no State shall emit bills of credit," and so forth, is 
precisely the style which, according to Judge Story him- 
self, as well as according to all usage, would be employed 
in articles of agreement between the States; and hence, to 
argue for the use of shall, instead of will, that the Consti- 
tution addresses the language of authority from the people 
of America to the States, is simj)ly ridiculous. " In com- 
pacts;" says Story, "we ourselves determine and promise 
what shall be done, before we are obliged to do it." And 
yet, in the face of this obvious fact, he argues from the use 
of shall in the Constitution, that it is not what the State 
"determined and promised," but what they were com- 
manded to do! that it is not, and cannot be a compact 
between the States at all ! 

A and B enter into articles of agreement. These arti- 
cles, according to good usage, say what A shall do, 
and what B shall do. What shall we say, then, of these 
articles? Shall we say, that they do not form an agree- 
ment, or contract at all? Shall we say, that A commands 
B, or "addresses to him the language of authority," as a 
law-giver speaks to a subject? If so, then B also com- 
mands A, and each is evidently the master of the other! 
Precisely such is the profound logic of Mr. Justice Story ! 



CHAPTEE XVI. 

Arguments in fav&r of the Bight of Secession. 

In the preceding chapters, it has, I think, been clearly- 
demonstrated, that the Constitution of the United States 
was a compact to which the several States were the par- 
ties. This, as we have seen, was most explicitly the doc- 
trine maintained by the fathers of the Constitution, and 
was unequivocally set forth by the Federalist in submit- 
ting that instrument to the people, and that it is confirmed 
by all the historical records of the country. If any propo- 
sition, indeed, respecting the Constitution can be consid- 
ered as unanswerably established, it is the doctrine of the 
Federalist, that the act by which it was ordained was " not 
a national, but a federal act;" having been ratified "by 
the people of America, not as individuals composing one 
nation, hut as composing the distinct and independent States 
to which they belong ;'"^ that the Constitution, "the com- 
pact," was established by "the States regarded as distinct 
and independent sovereigns." f It is, then, on this clear, 
broad, immutable foundation, that the argument in favor 
of secession rests. 

Argument in favor of Secession from the doctrine of re- 
served rights. 

It is frequently asked, by the opponents of secession, 
where is the right of a State to withdraw from the Union 
set forth or contained in the Constitution? But this 

* Federalist, No. XXXIX. f Ibid, No. XL. 



126 IS DAVIS A TRAITOR? 

question betrays a gross ignorance with respect to the 
origin of State rights. These rights are not derived from 
the Constitution at all; on the contrary, all the rights, 
powers, or authorities of the Constitution are derived 
from the States. And all the rights not delegated to the 
Federal G-overnment by the States, are reserved to the 
States themselves, — the original fountains of all the pow- 
ers, of "the Constitution of the United States." This is 
the doctrine set forth by the ^^ Federalist" in submitting 
that instrument or Constitution to the people. 

"The principles established in a former paper," says the 
Federalist, "teach us, that the States will retain all pre- 
existing authorities which may not be exclusively delega- 
ted to the federal head." * In the former paper here 
referred to, it is said: "All avithorities, of which the 
States are not explicitly divested in favor of the Union, 
remain with them in full vigor. ''^^ In the ratifying Conven- 
tion of Virginia, the same doctrine is set forth as well 
known to every one at that day, by J^olrn^ Marshall, who 
was afterward the illustrious Chief Justice of. tlie Supreme 
'T^urt of the United States. "The state governments," 
says he, "did not derive their powers from the general 
government. But each government derived its powers 
iroin the people, and each was to act according to the 
powers given it. Would any gentleman deny this? He 
demanded if powers not given, were retained by implica- 
tion ? Could any man say, no? Could any man say, that 
this power was not retained by the States, since it was 

Vnot given away? For, says he, does not a power remain 
till it is given away ?" f V***^ 
""Neither Marshall nor Hamilton, the author of the num- 
bers of the Federalist just quoted, was ever suspected of a 
desire to lessen the authority of the Federal Union, or to 
magnify that of the States. Yet, as we have seen, both 

* Federalist No. LXXXII. f Federalist No. XXXII. 

X Elliot's Debates, Vol. 3. p. 389. 



IS DAVIS A TRAITOR? 127 

of them assume as an imdoniablo principle, that every 
power wliich is not delegated by the States to the Federal 
Union, is retained by them in full vigor. This principle 
results, indeed, from the fact that all the powers of the 
Federal Government emanate from the peoples of the sev- 
eral States. The question of Marshall " does not a power 
remain till it was given away?" admits of but one answer. 
For if a principal delegates power to an agent of any 
kind, or for any purpose ; the agent only possesses the 
delegated powers, and all others remain with the princi- 
pal. Thus, according to the very nature of things, as 
well as according to the high authority of Hamilton and 
Marshall; the States retained all the powers which they 
had not delegated to the Federal Union. 

But however plain this principle, or however fully ad- 
mitted bj' the advocates of federal authority; the States 
still insisted that it should be expressly incorporated in 
the written language of the Constitution. ^Hence Massa- 
chusetts, having ratified the Constitutionf used the follow- 
ing language': --Asit is llio ()j)ini(in of this Convention 
that certain amendments and alterations in said Constitu- 
tion would remove the fears and quiet the apprehensions 
01 maiiy" "of "tti e good people of the eoinnionwealth, and 
more efFeetuall}' guard against an undue admini^stration 
01 tlie FecleraT Government, the Convention do therefore 
recom mend that the following alte]'atioiis and provisions 
be introiliicc(l into nald Constitution: 

"~~^TFirs(. 'I'hat it be explicitly declai\'d that all i^owers 
not expressly delegated by the aforesaid Constitution, are 
re&erveiJ to tJic .^rvrraf Sfafr.t. to lie by them exercised. "'^'*~'~* 

In like nianiu'v, and I'or a like reason, Yii'u-inia reconi- 
mended the following "Amendment to the Constitution. 
1st. _^Thnt ear-Ti State in tlie Union shall respectively^ 
retain f\-('fy powci', jiu'isdiet ion, and right, which is not 
b y this Consti tution delegated to the Congress of the 

* Elliot's Debates, Vol. II.' p. ISO. 



128 IS DAVIS A TRAITOR? 

United States, or to the departments of the Federal Gov- 
ernment.'' **^^Wth Carolina urged the same amendment 
>JP ^li*^' Con!?xitution, and in ]»r(,'eiscly the same words as 
those c'luployed h}' Yirgiiiia.f In llic first amendment 
pru])Osed by Pennsylvania, avc nn75 the following words: 
"All the rights of sovereignty, which are not by the said 
Constitution expressly and plainly vested in the Congress, 
shall he deemed to reinain with, and shall be exercised by the 
several States in the Union." J 

These recommendations, and others to the same effect, 
secured the tenth amendment to the Constitution of the 
United States; which is in these words: "The powers 
not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States, 
or to the 2yeo2)le."<yUi£. jeaBon, if authority, if history, if the 
words of the Constitution itself, can establisK" anything; 
then may we regard it as definitively and forever settled, 
that every power, right, or authority which is not delega- 
ted to the Federal Union, is reserved to the States, or to 
^e people of the States.V* / 

I ask, then, where is tnis great, inherent right of a 
State to resume the powers it has delegated, surrendered 
to the Federal Union? Where has this peerless right of 
sovereignty been ceded, surrendered, or given away? 
The people may rage, and the politicians imagine a vain 
thing; but I appeal to the great charter of American 
rights and liberties. Where, then, in the Constitution of 
the United States, is the sacred and inviolable right of a 
sovereign State to resume the powers it has delegated to 
its agents, given away or surrendered ? When the States 
entered into "the compact of the Constitution," they did 
so, as it is conceded both by Stoiy and Curtis, at the 
moment they were "fi-ee, sovereign, and independent 
States." Where, then, in that compact, did they delegate, 
surrender, or give away, the sacred right to resume the 

* Ibid.Vol. iii, p. 594. f lbid,Vol. iv, p. 240. J lbid,Vol. ii, p. 603. 



IS DAVIS A TRAITOR? 129 

powers which they delegated to their agent, the Federal 
Government ; or, in other words, the right to secede from 
the Union? Let the place in which this right, this great- 
est of all the rights of sovereignty, has been given away 
to the Federal Union, be pointed out in the Constitution; 
or it must be conceded, that it remained with the States. 
Let it be shown, where "the States are explicitly divest- 
ed" of this right "in favor of the Union;" or it must be 
admitted, that it "remained with them in full vigor."* 
Ignorance, or passion, or patriotism may "veil this right;" 
but, nevertheless, the question is, where is this right given 
away in the compact of the Constitution? If it be not 
given away there ; it still exists with the States in all the 
plenitude of its power. The stars do not cease to shine, 
or to exist, because they are concealed frem view by 
exhalations from the earth, or by the blaze of noon. 

Argument from the Sovereignty of the States. 

Perhaps no subject has ever been considered w^ith less 
steadiness of mind, or clearness of analysis, than "the 
sovereignty of the States." except "the sovereignty of 
the United States." The powers of the Federal Govern- 
ment are enumerated by one party, in order to show that 
it is sovereign or supreme ; while the opposite party at- 
tempts to prove the sovereignty of the States, by dwell- 
ing on the powers which belong to their governments. 
But all this is nothing whatever to the purpose. It 
merely deals with the branches, not with the roots, of the 
great subject under discussion; and how long soever these 
branches may be beaten, it will only make confusion the 
worse confounded. In the contest about the significance 
of the particular powers of the Federal and of the State 
Governments, the real principle on which the whole con- 
troversy hinges is overlooked, and the subject in dispute 



* Federalist, No. xxxii. 

7* 



130 IS DAVIS A TRAITOR? 

is darkened by words without knowledge, and buried far 
under floods of logomacy. 

Mr. Webster, for example, thus demolishes the doctrine 
of State sovereignty: ''However men may think this 
ought to be, the fact is, that the people of the United 
States have chosen to impose control on State sovereign- 
ties. There are those, doubtless, who wish they had been 
left without restraint ; but the Constitution has ordered 
the matter differently. To make war, for instance, is an 
exercise of sovereignty, but the Constitution declares that 
no State shall declare war. To coin money is another act 
of sovereign power; but no State is at liberty to coin 
money. Again, the Constitution says that no sovereign 
State shall be so sovereign as to make a treaty. These 
prohibitions, it must be confessed, are a control on the 
State sovereignty of South Carolina, as well as of the 
other States, which does not arise "from her feelings of 
honorable justice." The opinion referred to, therefore, is 
in defiance of the plainest provisions of the Constitu- 
tion.*" Why, then, did he not wind up his unanswerable 
logic with a quod erat demonstrandum ? 

The truth is, that the whole thing, from beginning to 
end, is a miserable sophism. His premises are false, and 
his conclusion, therefore, falls to the ground. The fact 
is, tbat the people of the United States imposed no con- 
trol whatever on the States, and had no j)ower to do so. 
On the contrary, each State, for the sake of union, agreed 
that it would abstain from the exercise of the right to 
wage war, to coin meney, and to make treaties. She del- 
egated these high powers to the government of the Fed- 
eral Union. She entered into the compact of the Consti- 
tution, as we have seen, in her character of "a distinct 
and independent sovereign," and was, therefore, "bound 
only by her own voluntary act."f All the poAvers of the 
Constitution were delegated, and all its obligations assu- 
* Webster's Works, vol, iii, p. 822. f Federalist. 



IS DAVIS A TRAITOR? 131 

med, by the free act of each sovereign State. All the con- 
trol to Avhich she was liable in the Union was self-imposed ; 
and not one particle of it was laid upon her by any au- 
thority but her own. The act, indeed, by which she en- 
tered, into the compact of the Constitution, was an exer- 
cise, not an abridgement, of her sovereign power. If 
she could not enter into such a compact, she would be 
less than sovereign. 

It is supposed by some, certainly by none who have 
reflected on the subject, that if a State delegates a portion 
of her powers, or agrees to abstain from the exercise of 
them ; her sovereignty is thereby limited, or abridged. 
To all such I would commend the words of Vattel : " Sev- 
eral sovereign and independent States," says he, "may 
unite themselves together by a perpetual confederacy, 
without ceasing to be, each individually, a perfect State. 
They will together constitute a federal republic : their 
joint deliberations iviU not impair the sovereignty of each 
member, though they may, in certain respects, put some restraint 
on the exercise of it, in virtue of voluntary engagements."^ 
Every one should be perfectly familiar with this principle 
of law. It has been clearly recognized and embodied in 
the legislation of this country. In the thirteenth Arti- 
cle of the old Confederation, for example, it is express- 
ly declared that "the Union shall be perpetual;" and 
yet, in the second Article, it is said that "each State 
retains its sovereignty, freedom, and independence." Thus 
although the States, in and by those Articles, delegated 
many sovereign powers to the Federal Government; this 
in conformity with the principle laid down by Yattel, did 
"not impair the sovereignty of each member." But since 
the new Constitution, or Articles of Union, contained no 
clause declaring it perpetual, or assigning any period for 
its duration; how much more clearly did each State in the 
"more perfect Union" retain its sovereignty unimpaired! 

* Vattel' s Law of Nations, p. 3. 



132 IS DAVIS A TRAITOR? 

For, in such case, it is conceded, as we have repeatedly 
seen, by the great lights of American jurisprndehce, that 
a State may secede at pleasure, or resume the powers she 
may have delegated to the Federal Government. 

Indeed, if a State could not thus delegate her sovereign 
powers, she would cease to be sovereign. She would 
resemble a minor, who is incapable of entering into con- 
tracts. The State, or the people themselves, cannot exer- 
cise sovereign powers in person; and hence, if she could 
not delegate them to her agents, representatives, substi- 
tutes, or servants; her sovereignty would be a useless 
burden to her. Thus, the very circumstance which is 
supposed, by superficial thinkers, to limit and control the 
sovereignty of a State, is indispensably necessary to the 
perfection of that sovereignty. The people are not 
the less sovereign, because they institute governments, 
and appoint them as agents to transact their business; 
although they necessarily delegate a portion of their sov- 
ereign powers to these agents, or governments. On the 
contrary, this is the very highest exercise of sovereignty, 
and implies the right to alter, amend, or remodel their 
governments. Nay, it implies the right of a people to set 
their government entirely aside, and to substitute another 
in its room. 

What, then, has all this talk about the powers dele- 
sated to the State Governments, or to the Federal Gov- 
ernment, to do with the great question of sovereignty'? 
Those governments are not sovereign. They are subordi- 
nate to the will of the people, by whom they were created ; 
and a subordinate sovereignty is a contradiction in terms. 
The only real sovereignty is that which makes, and 
unmakes, Constitutions and Governments. y/OrjJf ann^one 
is pleased to call any Government whether State or Fed^ 
eral, sovereign; he should not forget that it is merely a 
(feZe^fltec? sovereignly. It is not original; it is derived. It 
is not inherent; it comes from without; and, instead of 



IS DAVIS A TRAITOR? 133 

being supreme, it depends o n a power greater than itsel^> / 
llTS div-'isilole'/and way lie dividedamong different goverr/\ 
ments, or agents of the supreme power. ^Dn t he contrary, | 
the sovereign power of a State, or, in'otner Avords, thej^ 
DQwer 01 the people oi a btaje^j^^m^grent, orjgiDal, su- i 
preme, indi visible, a nd inalienablev ^/This, at least, is the \ 
"Amerleaii doctrme; and it is to be deeply lamented that 
Americans should, in the ardor and struggle of debate, so 
frequently forget, or overlook, the very first lessons they 
have ever learned, and which they certainly do not mean 
to repudiate or discard. 

I have nothing to say, then, about the delegated powers 
of this or that government. They have nothing to do 
with the question. Others may wrangle about those 
powers, if they please, and beat their brains over them- 
all I want to know is, where 7'esides the one po^cer from 
ivhich all such delegated poivers proceed. The difference 
between this one j^ower and the powers of the government 
it creates, is the difference between the sun and its rays, 
or the creator and its manifold creations. NAVhere, then, 
^oes this one_sovereion power reside ? It resides, as we 
have seen, in each State. an<l not in the people of tire " 
JJmted^ Sfates\.'The people of the United States, indeed, 
were not one pebple, or nation, in the political sense of the 
word, and were never clothed with any sovereign power 
whatever. The late war was, it is true, carried on "to 
preserve the life of the nation." But there was no such 
nation. Its substance was a sham, and its life was a lie.* 

As the one sovereign power, which makes, and therefore 
unmakes, Constitutions and Governments, resides in each- 
State; so each State had the right to secede from the Fed- 
eral Government. As each State, however, only made or 
adopted that Government for itself; so she could un- 
make it as to herself only. That is, she had no power to 
destroy the Federal Union, but only to withdraw from it, 

* See chap. xv. 



134 IS DAVIS A TRAITOR? 

and let it move on in its own sphere. In the exercise of 
her original, inherent, indivisible, and inalienable sover- 
eignty, she merely seceded from the Union to which he 
had acceded, and asked to be let alone. Bnt shp could not 
escape the despotic, all-devoxiring Lie, by which her sov- 
ereignty had been denied, and her rights denounced as "a 
pestilential heresy." K^ay, by which she had been stripped 
of her character as a State, and degraded to the rank of a 
county. Was that the purpose for w^hich, as a sovereign 
State, she entered into "the more perfect Union?" 

"No man," says Mr. Webster, "makes a question that 

the peojDle are the source of all political power 

There is no other doctrine of government here."* This 
is conceded. The j)eople make, and the jDcople unmake, 
Constitutions. This is the universal!}^ received doctrine 
in America. It is asserted by Calhoun as streniiously as 
by Webster. 

But the Constitution was made by the people of the 
several States, each acting for itself, and bound by no 
action but its own. yUence. as each State acceded to the 
compact of the Constitution, so each State may, if it 
i choose, secede from that compact. If the premise is true, 
the conclusion is conceded; and the premise has been demon- 
strated. In acceding to the compact of the Constitution, 
each State made the Union as to itself; and, in seceding 
therefrom, it unmakes the Union only as to itself And 
it does so by virtue of its own inherent, and inalienable 
sovereignty.,^ 

If it shoulflbe^^aid, that the people of the several States 
made, but cannot unmake, the compact of the Constitution 
as to themselves; it would follow that the people of 1788 
alone were sovereign. But the people of this generation 
are sovereign as well as the people of that generation. The 
attribute of sovereignty is, according to the American doc- 
trine, inherent and inalienable. The people of Yirginia^ 

* Webster's Works, vol. vi. p. 221. 



IS DAVIS A TRAITOR? 135 

then, in the year 1788, did not, and could not, absorb and 
monopolize the sovereignt}- of all subsequent generations, 
so as to deprive them of its exercise. If this could be so, 
then the sovereign people of one age, or generation, might 
deprive the sovereign .people of all ages and generations 
of their power and freedom. But this ca'nnot be. The 
living, as well as the dead, are sovereign. As the people 
of Virginia in 1788 acceded to the Union, because they 
believed it would be for their good ; so the people of Vir- 
ginia in 1861 had aright to secede from the Union, because 
they believed it had been made to work their insufferable 
harm. Deny this, and j'ou assert the sovereignty of the 
people of Virginia of 1788, at the expense of the sover- 
eignty of the people of Virginia for all future ages. Or, in 
other words, you take all power, and sovereignty^ and 
freedom from all other ages and generations, in order to 
concentrate and bury them with a past, departed, inexpe- 
rienced, and perhaps fatally deluded generation. The 
whole American doctrine of the sovereignty of the people 
is false, or else it must be asserted for the living as well as 
for the dead; and even if it is false, it is nevertheless the 
doctrine b}^ which the right of secession should be tried. 
y At the time the Constitution was adopted, or "the more 
^Tperfect Union" formed; the people of I^ew England took 
"~tlie Tead of all others in their devotion to State-sovereignty 
and State-rights. Thus, in her Constitution of 1780, Mas- 
"sach'usetts declared : "The people of this commonwealth 
have the sole and exclusive right of governing .themselves, 
"as a freej sovereign, and independent State; and do, and 
ftJT'evSf hereafter shall, exercise and enjoy every power, 
jTmscticTroh, and righf, which is'not, or may not hereafter^ 
be by them expressly delegated to the United States of 
America, in Congi'ess assembled." Precisely the" same' 
language, word for word, is contained in the Constitution 
of New Hampshire ; which Avas made twelve years after 
that of Massachusetts. Thus, after the new Union was 



136 IS DAVIS A TRAITOR? 

formed, 'New Hampshire, in the words of Massachusetts, 
declared herself a "free, sovereign, and independent 
State." "Paris," it has been said, "is France." It is more 
certain that "Massachusetts is New England." 

How did it happen, then, that' Massachusetts in 1780, 
and consequently New England, took the lead of all 
the members of the Union in her devotion to the doctrine 
of State-sovereignty; and yet, in 1861, more fiercely 
denounced that very doctrine as "a pestilential heresy" 
than any other State in existence? The answer is plain. 
The mystery is easily solved. Or rather, it is no mystery 
at all to any one acquainted with the character, or the 
histor}', of Massachusetts. Never has she been in the 
ascendenqy, as in 1861, or with the majority working the 
Union for her benefit, that it did not appear to her eyes, 
like the full moon, a great world of light full of inexpressi- 
ble beneficence and beauty. Nor has she ever been in 
the minority, feeling the pressure of the Union, or its 
demands upon her purse, that it did not rapidly wane, and 
appear to her emptied of all its glorj^. Hence, in 1861, so 
great was the glory of the Union to her eiiravished eyes, 
that it blotted out the States ; just as the meridian sun 
blots out the stars. She forgets her primitive creed ; or, 
if she remembers it at all, it is only to denounce it as the 
creed of "rebels and traitors." On the other hand, when, 
in 1815, Massachusetts felt the Union in her pockets ; all 
its glory vanished, and the Eights of the States, and the 
Sovereignty of the States, came out to her keen vision 
like stars after the setting of the sun. This has been the 
great misfortune of the South, that the world did not turn 
around quite as fast at her end of the Union as it did in 
New England; and that it did not turn exactly in the 
same direction. The creed of the fathers, the creed of all 
sections in 1787, the creed of all the States for more than 
thirty years after the formation of the "more perfect 
Union;" was substantially the creed of the South in 1861. 



IS DAVIS A TRAITOR? 137 

There she stood. But, in the mean time, Massachusetts, 
and consequently all ISTew England, having made one entire 
revolution, denounced her primitive creed,— still the creed 
of the South, — that the States are "free, sovereign, and 
independent," as the invention of rebels and traitors, 
designing to put the glorious Union out of joint. True, 
the South did dislocate the Union, and breed fiery discord; 
but then, this wag simply by standing still, and refusing to 
follow the rapid revolution of New England. 

Argument from the silence of the Constitution. 

It is a remarkable fact, that, in the Constitution of the 
United States, there is not a word relating to the perpe- 
tuity or continuance of the Government established by it. 
This momentous question is passed over in profound 
silence. Nor was this omission an act of forgetfulness. 
It was, on the contrary, the result of deliberate design. 
The existing Articles of Confederation expressly provided 
that the government established by them should be "jjer- 
petual," and should never be changed without the unan- 
imous consent of all the States of the Union. This pro- 
vision was deliberately struck out, or not permitted to 
appear in the new Constitution. In the act of receding 
from the compact of the Union, which had expressly jjro- 
nounced itself "perpetual," the fathers had not the face 
to declare that the new compact should last forever. 
Time had demonstrated the futility of such a provision. 
The Convention of 1787 had been most sadly hampered 
by it in their design to erect a new form of government, 
as appears from the Madison Papers, and other accounts 
of its proceedings. Hence they wisely determined to 
leave no such obstacle in the way of the free action of 
future generations, in case they should wish to ncAV-model 
their government. It is certain that no such obstacle is 
found in the Constitution framed by them. 

Now what is the inference from this fiict, from this 



138 IS DAVIS A TRAITOR? 

omission ? If the framers of the Constitution designed to 
make it perpetually binding, Avhy did they not say so? Nay, 
why did they depart from the plan before them, and 
refuse to say so? Only one answer can be given to this 
question. They did not intend to repeat the folly of seek- 
ing to render perj)etual, by mere dint of words, those 
Articles of Union between Sovereign States, whose bind- 
ing force and perpetuity must necessarily depend on the 
justice with which they should be observed by the parties to 
them, or on their adaptation to the great ends for which 
they were enacted. The perpetuity, or continuance, of 
the new Union was frequently alluded to and considered 
in the Convention of 1787 ; and yet there is not one sylla- 
ble on the subject in the Constitution made by them. 
This speaks volumes. 

It is argued, in the Federalist, * that as the old Articles 
of Confederation had utterly failed in consequence of 
defects which no one had foreseen; so the real objections 
to the new Constitution, whatever they might be, would 
in all probability remain to be disclosed by time and ex- 
perience. Eeasoning from the past, it Avas concluded, 
that no one could foresee what its real defects were, or how 
great they might prove in practice. Would it not, then, 
have been infinitely absurd to pronounce it perpetual, or 
seek to stamp it with the attribute of immortality? 

The truth is, that the new Constitution was designed by 
its authors to last just as long as it should be faithfullj^ 
observed by the parties to it, or as it should answer the 
great ends of its creation, and no longer. On the failure 
of either of these conditions, then, in their view, the pow- 
er by which it was ordained possessed the inherent and 
indefeasible right to withdraw from it. Otherwise there 
would be no remedj', not even in the sovereign power 
itself, for the greatest of all political evils or abuses. Oth- 
erwise we should have to repudiate and reject the great 

* No. XXXVIII. 



IS DAVIS A TRAITOR? 139 

principle of American freedom, which has never been 
called in question by any statesman of the New World, 
or over which the least cloud of suspicion has ever been 
cast by any American citizen. 

"What, then, is the position assumed by those who deny 
the right of secession ? In asserting that a State has no 
right to withdraw from the Union, they declare that the 
Constitution, or Articles of Union, is perpetually binding. 
That is to say, by a forced construction, they introduce 
into the Constitution, the very provision which its framers 
most delibei-ately refused to insert therein ! They refused 
to say, that the new compact should be perpetual ; and 
yet these interpreters declare, that they designed to make 
it perpetual ! 

Both Story and "Webster admit, as w^e have repeatedly 
seen, that if sovereign States enter into a comj^act or Con- 
federation, without expressly prescribing any period for 
the continuance of the Union; then any State has the 
right to secede at pleasure. This is the true inference to 
be drawn from the silence of the Constitution as to the 
continuance of the Union ; an inference too clear and un- 
questionable to be denied by either a Story or a Webster. 
If they have sought to evade its force, or obscure the 
right of secession; this is by assuming the ground, so 
fully exj)loded in the preceding pages, that the Constitu- 
tion was not a compact between the States of the Union. 

"It is sometimes asked," says Mr. Motley, "why the 
Constitution did not make a special provision against the 
right of secession. How could it do so?"* Why, simply, 
by transferring the words of the old Constitution to the 
new, and saying "the union shall be perpetual." There is 
no impossibility in the case. The thing had been done 
once, and it might easily have been done again, if the fra- 
mers of the Constitution had desired to do it. Many 
words, phrases, and provisions of the old Constitution 

* Rebellion Record, Vol. I. p. 214. 



140 IS DAVIS A TRAITOR? 

were transferred by them to the new; and if they had 
wished to do so, they might just as easily have transfer- 
I'ed those words, "the union shall be perpetual," or last 
till all the parties consent to a separation. "How could 
they do so?" asks Mr. Motlej^; and I reply, how could he 
ask so silly a question? 

"It would have been puerile," says he, "for the Consti- 
tution to say formally to each State, thou shaltnot secede." 
There was no necessity, perhaps, that the Convention 
should have been very formal in the language it addressed 
to the States. But would it have been puerile, or ridicu- 
lous, if the Convention had said, "the Union shall be per- 
23etual." Who can doubt that if these words had been 
inserted in the new Constitution, that Mr. Motley would 
have wielded them as an unanswerable argument against 
the rio-ht of secession? Indeed, these words answer that 
purpose so well, that Dr. Hodge borrows them from the 
old Articles of Confederation, and passes them off as "the 
very words " of the Constitution, in order to demonstrate 
the palpable absurdity of secession ; in order to show 
that secession is in direct and open defiance of "the avow- 
ed design of the compact" of 1787. These words were, 
indeed, the very ones he needed to demolish the right of 
secession; and his need was so great, that he came at 
them in no very legitimate way. Could any thing be 
more feeble, or puerile, than Mr. Motley's attemj^t to 
account for the silence of the Convention on the momen- 
tous subject of secession? or more clearly illustrate the 
difficulty of getting rid of the argument from that silence 
in favor of secession? The truth is, that the Convention, 
in its desire to secede from the old compact, was so great- 
ly embarrassed by the clause declaring that "the Union 
shall be perpetual," that it deliberately removed that 
obstacle from the path of future legislation: and, whether 
it was intended by the Convention or not, the legal effect 
of this was to establish the right of secession under the 
new compact between the same parties. 



IS DAVIS A TRAITOR? 141 

Argument from the Fundamental Principle of the Union. 

"To render a Federation desirable," says Mr. John 
Stuart Mill, "several conditions are necessary. The first 
of these is, that there should he a sufficient amount of mu- 
tual sympathy among the popidations."* This sentiment 
recommends itself to the good sense of every man in the 
^^ orld; nay, to every man who is not insane from the influ- 
ence of passion. Even Mr. Greely, before he war, could 
,su)', — "We hope never to live in a Eepublic, whereof one 
section is pinned to another by baj^onets." Such is in- 
dc'cd the desire of every good man, nay, of every rational 
being; for, as Mr. Mill says, no union of States is desirable, 
unless it be held together by the cement of good feeling, 
as well as of interest. 

In like manner, John Quincy Adams says: "The indis- 
soluble link of union between the people of the several 
States of this confederated nation is, after all, not in the 
right, but in the heart. If the day should ever come, (may 
Heaven avert it) when the affections of the people of these 
States shall be alienated from each other; when the fra- 
ternal spirit shall give way to cold indifference, or collision 
of interest shall fester into hatred, the bands of political 
associations will not long hold together parties no longer 
attracted by the magnetism of conciliated interests and 
kindly sympathies; and par better will it be for the 

PEOPLE OF THE DISUNITED StATES TO PART IN FRIENDSHIP 
FROM EACH OTHER, THAN TO BE HELD TOGETHER BY CON- 
STRAINT. Then will be the time for reverting to the 
precedents which occurred at the formation and adoption 
of the Conj^titution, to form again a more perfect union, 
by dissolving that which could no longer bind, and to leave 
the separated parts to be re-united by the law of politi- 
cal gravitation to the centre." 

"Better," says Mr. Adams, "to part in friendship, than 

* Representative Government., chap. xvii. 



142 IS DAVIS A TRAITOR? 

to be held together by restraint." History, it is said, 
repeats itself. Some of the Greek States, wishing to part 
in peace from their confederates, were held together 
by force of arms. This, says Freeman, in his learned work 
on Federal Government, ultimately proved injurious to 
those who drew the sword of coercion. 

Argument from the Bight of Self- Government. 

The thirteen Colonies, in the Declaration of Independ- 
ence, justified their separation on the distinct ground, that 
all "governments" derive "their just powers from the con- 
sent of the governed." It was in obedience to this great 
principle, that the American Union became a free and vol- 
untary association of States. This, by its very nature, ex- 
cludes the idea of coercion. For, if States are compelled to 
remain in theUnion against their will, this is subjugation, 
and not a copartnership in honor, interest, freedom, and glo- 
ry. It destroys the autonomy, annihilates the freedom, and 
extinguishes the glory of the subjugated States. The sys- 
tem is transformed. It is no longer a sisterhood of free 
States,;but the vassalage of some, and the dominion of others. 

This is so obvious, that it was declared at first, even by th,e 
most zealous advocates of President Lincoln, that one no 
intended to coerce a State. What then ? Did they mean 
to let it go in peace? No, they neither intended to coerce 
a seceding State, nor let it depart! But how was such a 
thing possible ? Why, these admirable casuists, by a most 
refined and subtle distinction, determined that they would 
not coerce a State, but only the people of whom it is com- 
posed! The State secedes. The citizens acknowledge 
their allegiance to the State, and determine to obey the 
ordinance of secession. And thereupon the Federal Gov- 
ernment resolves to wage war, not upon the State itself, 
but only upon the people of the State! Happy State! 
Miserable people ! The one may depart ; but the other 
must come back ! But if the Federal Government had 



18 DAVIS A TRAITOR? 143 

only ^\"aged war upon the State, how woukl it have pro- 
ceeded otherwise than it did? 

The authors of this very nice distinction, were evidently 
driven to assume such a position, by the horror which 
Madison, Ellsworth, Mason, Hamilton, and other fathers 
of the Constitution, were known to have expressed at 
the idea of the coercion of a State. No! they would not 
coerce a State; they would not be guilty of the horrid 
thing so eloquently denounced by the fathers; they would 
only wage war on the men, women, and children of whom 
the State is composed! How admirable the acuteness! 
How wonderful the logic. 

In 1848, Ml-. Lincoln had not forgotten his very first, 
and nearly his very last, lesson in the science of govern- 
ment. He had read it in the Declaration of Indepen- 
dence ; he had heard it recited in school ; he had heard it 
most eloquentl}^ spouted every fourth of July. How, 
then, could he forget it, without some very powerful mo- 
tive? No humble rail-splitter, no honest citizen, could 
forget such a lesson. It requires a great politician, or a 
President, to forget, despise, and trample such things un- 
der foot. Hence, in 1848, the humble citizen, Abraham 
Lincoln, like every other American citizen, publicly de- 
clared, that "any people whatever have the right to abol- 
ish the existing government, and form a new one that 
suits them better. This is a most valuable, a most sacred 
right." Yes, any people ivhatever; the thirteen British 
Colonies; the Greeks; the States of South America; 
Poland ; Hungary ; any and every people under the wide 
expanse of heaven; except the people of the South. But 
why except the South? The reason is plain. It was, in- 
deed, most perfectly and fully explained by Mr. Lincoln 
himself. When asked, as President of the United States, 
"why not let the South go?" his simple, direct, and honest 
answer revealed one secret of the wise policy of the 
"Washington Cabinet. "Let the South go!" said he, 



144 IS DAVIS A TRAITOR? 

^^ where, then, shall we get our revenue?" There lies the se- 
cret. The Declaration of Independence is great; the 
voice of all the fathers is mighty; but then they yield us 
no revenue. The right of self-government is "a most 
valuable, a most sacred right;" but in this particular 
case, it gives us no revenue. Hence, this "most valuable, 
this most sacred right," may and should shine upon every 
other land under heaven; but here it must "pale its inef- 
fectual fii-es," and sink into utter insignificance and con- 
tempt in the august presence of the "Almighty Dollar." 

As the object of the Black Eepublican leaders, in wish- 
ing to retain the South, was not to lose revenue; so now 
that they have the South, the only use they have for her 
is to lay taxes and other burdens of government upon her.' 
In open and shameless violation of the great principle of 
'76, the South is united to the North by the tie of " taxa- 
tion without representation." Is this "the sacred right" 
of self-government? The Union waged a seven years war 
to establish that right, and a four years war to demolish it. 

Every American citizen has taken in the idea of self- 
government with his mother's milk; has heard it from all 
his most venerated guides, teachers, and oracles ; has pro- 
claimed it himself, perhaps, all his life as "a most valuable, 
and a most sacred r ght." Hence, he should not be 
required, all on a sudden, to proclaim the diametrically 
opposite doctrine. He should be allowed some little time, 
at least, to clear his throat for the opposite utterance. Is 
it not quite natural, then, that his early and life-long pre- 
judice in favor of the right of self-government, should have 
clung to the Editor of the Tribune, the great organ of the 
Republican party, even while that party was preparing 
the way for its subversion? True, it was but an organ ; yet 
had it so long, and so earnestly, proclaimed the great right 
of self-government, that some little time, at least, should 
have been allowed for it to come right around to the dia- 
metrically opposite position. Accordingly, on the 9th 



IS DAVIS A TRAITOR? 145 

of November, three days after Mr. Lincoln's election, that 
organ tittered the sentiments: "If the cotton States 
shall become satisfied that they can do better out of the 
Union than in it, we insist on letting them go in peace. 

****** S|J 

We must ever resist the right of any State to remain 
in the Union and nullify or defy the laws thereof To 

WITHDRAW FROM THE UnION IS QUITE ANOTHER MATTER; 

and whenever any considerable section of our Union shall 
deliberately resolve to go out, we shall resist all coer- 
cive MEASURES DESIGNED TO KEEP IT IN. We hoj)e UeVCr 

to live in a Republic whereof one section is pinned to 
another by bayonets." 

Again, on the 17th December, just before the secession 
of South Carolina, the same organ said : "If it [the Decla- 
ration of Independence] justifies the secession from the 
British Empire of three millions of colonists in 1776, we 

DO NOT SEE AVHY IT WOULD NOT JUSTIFY THE SECESSION OF 
FIVE MILLIONS OF SOUTHERNERS FROM THE FEDERAL UnION 

IN 1861. If we are mistaken on this point, why does not 
someone show us ivherein and why ? For our own part, 
while loe deny the right of slaveholders to hold slaves against 
the will of the latter; we cannot see how twenty millions of 
people can hold ten, or even five, in a detested Union ivith them 
by military forced ***** jf ggven or eight con- 
tiguous States should present themselves authoritatively 
at Washington, saying, ' We hate the Federal Union ; we 
have withdrawn from it ; we give you the choice between 
acquiescing in our secession and arranging amicably all 
incidental questions on the one hand and attempting to 
subdue us on the other, we could not stand up for coer- 
cion, FOR subjugation, FOR WE DO NOT THINK IT WOULD 
BE JUST. We HOLD THE RIGHT OF SELF-GOVERNMENT EVEN 
WHEN INVOKED IN BEHALF OP THOSE WHO DENY IT TO 
OTHERS. So MUCH FOR THE QUESTION OF PRINCIPLE.' " 
* * * * * * • * 



146 IS DAVIS A TRAITOR? 

"Any attempt to comj)el them by force to remain would 
be contrary to the principles enunciated in the immortal 
Declaration of Independence, contrary to the fundamental 
ideas on which human liberty is based." 

On the 23d February, 1861, after the cotton States had 
formed their confederacy, .the Tribiine used this language: 
" We have repeatedly said, and we once more insist, that the 
great principle embodied by Jefferson in the Declaration 
of American Independence, that Governments derive their 
just powers from the consent of the governed, is sound 
and just; and that if the slave States, the cotton States, or the 
gulf States only, choose to form an independent nation, they 
HAVE A CLEAR MORAL RIGHT TO DO SO. Whenever it shall 
he clear that the great body of Southern people have become 
conclusively alienated from the Union, and anxious to escape 
from it, WE will do our best to forward their views." 

President Buchanan, from whose interesting book the 
above extracts have been taken, adds : " In a similar spirit, 
leading Bepublicans everj^where scornfully exclaimed, 
'Let them go;' 'We can do better without them;' 'Let the 
Union slide,' and other language of the same import." 

Before the war, it was indignantly denied, that the 
abolitionists constituted more than a small minorit}^ of 
the Eepublicans. How is it since the war? Does not 
almost every man of them now claim that he has always 
been an abolitionist, and, as such, come in for his share 
of glory in the forced emancij)ation of the slaves? It is 
certain, that of all the men in the Union, the abolitionists 
of the Eepublican party were the most active asserters, 
and the most powerful promoters, of secession and disu- 
nion. They everywhere proclaimed, not only the right, 
but the sacred duty of secession. "William Lloyd Garrison 
led the way. "In the expressive and pertinent language 
of Scripture," said he, the Constitution 'was a covenant 
with death, and an agreement with hell,' null and void 
before God, from the first moment of its inception — the 



IS DAVIS A TRAITOR? 147 

framers of which were recreant to duty, and the supporters 
of which are equall}' guilt}'."* Yet, how strange! the 
men of this school enlisted in the ranks, and fought under 
the banner of Mr. Lincoln ; who was bound by his oath to 
support that "covenant with death and agreement with 
hell!" Did they fight for the Constitution? Did they 
heartily join in the cry for the Union? 

Affain, he said, "the motto inscribed on the banner of 
Freedom is, no Union with slave-holders""}" * * * * 
"Our motto is, no Union with slave-holders, either reli- 
gious or political." J [I am holier than thou!] "In with- 
drawing from the American Union, we have the God of jus- 
tice with us." § Did this man, then, or his followers, 
fight for the Union? "Circulate," he cried, "a declara- 
tion of DISUNION FROM SLAVE-HOLDERS THROUCmOUT THE 

COUNTRY. Hold mass meetings — assemble in Conventions 
— nail your banners to the mast." || Did these men, then, 
take down their banners, trample its motto in the dust, 
and join the loud war-cry for the Union of the fathers? 
If so, then it was not because they hated that Union the 
less, but because they hated Southerners the more. 

Now this man "William Lloyd Garrison was an honest 
fanatic. He just came right down with a direct sledge- 
hammer force on all slave-holders, and on all the poor, 
pitiful, pulling hypocrites, who pretended to desire to pre- 
serve the Constitution and the Union ; and who, to that 
end, labored to explain away the provisions of that "sacred 
compact," as they delighted to call the Constitution. 
" Those provisions," said they, " were meant to cover sla- 
very," yet "as they may be fairly interpreted to mean 
something exactly the reverse, it is allowable to give 
them such an interpretation, especially as the cause of Free- 
dom will he thereby promoted." ^ In thus stating this hypo- 
critical position, Mr. Garrison must have had Mr. Sumner in 

*Anti- Slavery Examiner, Vol. xi, p. 101. flbid, p. 101. 

t Ibid, p. 118. ^ Ibid, p. 119. || Ibid, p. 119. H Ibid, p. 104. 



148 IS DAVIS A TRAITOR? 

his mind's eye. But with honest scorn and contempt he 
tears the mean fabric to tatters, and scatters it to the 
winds! "This," says he, "is to advocate fraud and vio- 
lence to one of the contracting parties, whose co-operation 
was secured only by an express agreement and undertaking 
between them both, in regard to the clauses alluded to; and 
that such a construction, if enforced by laws and penalties, 
would unquestionably lead to civil war, and the aggrieved 
party would justly claim to have been betrayed, and robbed of 
their Constitutional rights."* 

"No honest use can be made of it," says he, "in opposi- 
tion to the plain intention of its framers, except to declare 
the contract at an end, and to refuse to serve under it."-f 
It is of no use to lie, said he, the Constitution is "a con- 
tract" between the States; an "express agreement and 
undertaking" between the North and the South. He 
will not have this "express agreement" explained away. 
"It is objected," says he, "that slaves are held as prop- 
erty, and therefore, as the clauses refers to persons, it can- 
not mean slaves. Slaves are recognized not merely as 
property, but also as persons, — as having a mixed charac- 
ter — as combining the human with the brute. This is 
paradoxical, we admit; but slavery is a paradox — the 
American Constitution is a paradox — the American Union 
is a paradox — the American Government is- a paradox — 
and if any one of these is to be repudiated on that ground, 
they all are. That it is the duty of the friends of free- 
dom to deny the binding authority of them all, and to 
secede from all, we distinctly affirm." ^ 

Such were the sentiments of Mr. Lloyd Garrison, in 
1844, delivered in their annual address to the Anti-Slavery 
society of America, as its president. Precisely the same 
sentiments were entertained by the two learned secretaries 
of that society, namely, Wendell Phillips and Maria Weston 



*Ant,i- Slavery Examiner, Vol. xi, p. 104. 
flbid. Ilbid. p. 114. 



IS DAVIS A TRAITOR? 149 

Chapman, as well as by all its leading members. iThey 
proclaimed the diaty of secession from the Constitution, 
from the Union, and from the Government of America. 
They wished to have nothing to do with slave-holders. 
In the mild and conciliatory language of their president, 
they longed to get away and to live apart from those 
"incorrigible men-stealers, merciless tyrants, and blood-thirsty 
assassins." * 

Such was the gentle and persxiasive language, and such 
were the loyal sentiments, of the abolitionists from 1844 
to 1861. The following resolutions were passed at a meet- 
ing of the American Anti-Slavery Society : 

Resolved, ' That secession from the United States Government is 
' the duty of every Abolitionist, since no one can take office or deposit 
' his vote under the Constitution without violating his anti-slavery 
' principles, and rendering himself an abettor to the slave-holder in 
' his sin.' 

Resolved, ' That years of warfare against the slave power has con- 

* vinced us that every act done in support of the American Union 
'rivets the chain of the slave — that the only exodus of the slave to 

* freedom, unless it be one of blood, must be over the remains of the 

* present American Church and the grave of the present Union.' 

Resolved, ' That the Abolitionists of this country should make it 
' one of the primary objects of this agitation to dissolve the Ameri- 
' can Union.' 

Yet of all the war-spirits in the country, these very 
men were the loudest and fiercest in their cries for a war 
of coercion to put down secession, as rebellion and trea- 
son. In its burning hate of the Union, the Tribune had 
become poetical, and addi^essed The American Flag as 
follows : 

Tear down that flaunting lie ! 

Half-mast the starry flag ! 
Insult no sunny sky 

With hate's polluted rag ! 

But, all on a sudden, that "polluted rag" became the most 
* Anti-Slavery Examiner, Vol. xi, pp. 111-12. 



150 IS DAVIS A TRAITOR? 

sacred ensign of freedom that ever floated between hea- 
ven and earth! The cry has gone forth : " This Union is a 
lie! The American Union is an imposition. * * * j 
am for its overthrow. * * * xjp with the flag of dis- 
union, tliat we may have a glorious Eepublic of our own." 
But anon and from the same person, the opposite cry is 
heard: "Down with the flag of disunion, and up with the 
flag of the Union, that we may 'preserve the life of the na- 
tion,' the glorious Eepublic of the fathers.' " Even the des- 
pised Constitution, "the antiquated parchment" of Henry 
Ward Beecher, becomes all at once young, and fresh, and 
beautiful again ; and that Reverend gentleman stands be- 
fore the world at Exeter Hall as the grand rej)resentative 
of the "constitutional union" party of this country. 

Is there, in the history of the world, another instance 
of a change so sudden, so complete, and so wonderful in 
the avowed sentiments of any great body of men, as that 
which took place among the abolitionists of this country 
in 1861? Now whence all this intense love of the Union, 
where recently there had been such deadly hate ? Whence 
this new-born desire to be forever associated with "the 
merciless tyrants, the blood-thirsty assassins" of the South? 
The truth is, they did not love the Union then, and they 
do not want the Union now. They raised the cry of 
"the Union;" because, as one of their leaders said, they 
believed they could "win on the Union." And having 
ridden into power on "the Union," and consolidated their 
power in the name of "the Union;" they now resist the 
persistent efforts of President Johnson to restore the 
Union. 

But Mr. Greely has, in his "American Conflict," made a 
most awkward and unsatisfactory attempt to explain the 
course of the Union-hating and the Union-loving Tribune. 
It was, perhaps, a little difticult for him to speak out all 
that was in him on this delicate subject. The truth seems 
to be, 1. That the word which went forth from President 



IS DAVIS A TRAITOR? 151 

Lincoln, "If we let the South go, where shall we get our 
revenue?" is one of the causes of the great change in 
question. Several books had, in 1860, been published to 
illustrate the subject of "Southern Wealth and Northern 
Profits," and, upon reflection, the North concluded that, 
after all, she had some use for the South. She was nat- 
urally indignant at the thought of losing the bird, which 
had so long laid for her the golden egg. 2. Secession 
offered a splendid opportunity, or occasion, on which to 
wreak a little wrath on the slave-holders of the South, on 
those "incorrigible men-stealers, merciless tyrants, and 
bloodthirsty assassins," who so richly deserved to die. 
But it would, of course, be much more respectable to kill 
them as "rebels and traitors," than merely as slave-hold- 
ers. Hence, the very men who had been foremost and 
fiercest in preaching the duty of secession and disunion, 
became, all on a sudden, the most clamorous for the blood 
of secessionists as traitors to "the glorious Union." As 
the cynic, Diogenes, trampled on the robe of Plato's 
pride with a still greater pride; so the abolitionists panted 
for the blood of "blood-thirsty assassins" with a still 
greater thirst. Hence, more than any other class of men, 
they insisted that Mr. Lincoln, however reluctant, should 
" cry havoc, and let slip the dogs of war." 3. Secession 
furnished a fine pretext, a glorious occasion, for the forced 
emancijiation of the slaves at the South. Hence, just be- 
fore Mr. Lincoln publicly declared that he had neither the 
wish, nor the power, to interfere with slavery in the 
States, the word privately went forth from a member of 
his Cabinet, that secession should be punished with the 
emancipation of the blacks, and with the utter devasta- 
tion of the South, by fire and sword. * This Avord was, 
of course, intended for "the faithful." For if, at that 

* Perhaps that member of his Cabinet knew the design of Mr. 
Lincoln's administration better than it was then known to Mr. Lin- 
coln himself. 



152 IS DAVIS A TRAITOR? 

early day, such a design had been publicly avowed, it 
would have filled the North with amazenient, horror, 
and disgust. But has it not been accomplished to the 
very letter? 

Such were the causes, especially the last two, by which, 
it seems to me, so wonderful a revolution was produced in 
the political views and aspirations of the Northern abol- 
itionists. The change appeared like magic. "The anti- 
quated parchment" was renovated; the "polluted rag" 
was purified; and the Union became, not only habitable, 
but the only fit habitation for free men. But, then, the 
Union was not to be "the more perfect Union" of the 
fathers; the Constitution was not to be the compact of 
1787; and "hate's polluted rag" was to be consecrated 
and glorified by hate. On the contrary, the Union was 
to be cast into the fui-nace of war, seven times heated, 
and to come forth free from the sin of slavery, and 
cemented, not by "the mutual sympathy of its popula- 
tions," but by their blood. It was to be a new Union; a 
bright and beautiful emanation, not from the consent of 
the governed, but from the sovereign, the supreme, the 
sublime will of the Northern abolitionists. How lustily 
soever they joined in the war-cry for the Union, this was in 
order that they might the more eifectually overthrow it, and 
ordain one of their own in its place. Is not this the true 
secret of their new-born love for "the glorious Union?" 

Previous to the war, it was frequently alleged, that the 
abolitionists constituted only a small minority in the Ee- 
publican party. It is certain, that they controlled the 
policy of Mr. Lincoln's administration. "The higher 
laAV," "the law written on the hearts and consciences of 
freemen," was the rule of their conduct. For the Consti- 
tution, for the compact of 1787, for that "covenant with 
death and agreement with hell," they cared less than 
nothing; except when it agreed with their own will, or 
could be made a pretext for their dark designs. The fact, 



IS DAVIS A TRAITOR? 153 

that there was not the shadow of an authority for coercion 
in the Constitution, had not the least weight with them. 
Nay, if the power to coerce had been expressly denied to the 
Federal Government in the Constitution; this provision 
would have been easily explained away, or overruled by "the 
law written on the hearts and consciences of freemen." It 
would have been but a "straw to the fire i' the blood." 
x/Presi dent Buch anan^ouM_iXQt^d^the^ower to coCTce^ 
kState'in. jthe_Constitu tion he had^ sworn to suppo rfey/In 
like manner. Professor Bernard7ofT)xlord, England, find- 
ing no^ authority for the coercion of a State in the Consti- 
tution of 1787, pronounces it wrong. The same ground 
is taken by Mr. Freeman, of the same University, in 
his learned work on Federal Government^j^ ^ut if coer-_ 
(•ion i^ :\ wroni;- under the Constitution; tlie'n^ surely, 
srcession i? a Cons titutionul rightV^ Every man lias tlie 
Teff'al rio-'Et to do anv tliin--. which is not forbidden" by the 
law of the land. He may not have the moral, but he has 
the legal, right to do it. A miserly act, for example, espe- 
cially in a rich man, is morally and socially wrong. But 
if there is no law against it, then, however rich the man 
may be, he has the legal right to do it. We may despise 
the act; wa may abhor it; and we may*denounce it as 
bitterly as any one ever denounced secession. But still, 
in the case supposed, the act is done in the exercise of 
a legal right; which every one is bound to recognize and 
respect. This ambiguity in the term right has, indeed, 
been the source of no little darkness and confusion in the 
discussion of moral and political questions. Mr. Buchanan 
seems to have been confused by this ambiguity, when he 
denied both the right of coercion and the right of seces- 
sion. SuT'ely, both positions cannot be true, in the legal 
sense of the term right. For, if we say, that coercion is 
a constitutional wrong, or usurpation, is not this saying that 
the Constitution permits secession, or, in other words, that 
it is a Constitutional right? 
8* 



154 IS DAVIS A TRAITOR? 

This appears so clear to my miBd, that when Mr. 
Buchanan denied the right of secession, I suppose he 
merely intended to condemn secession as a moral or social 
wrong. This is the way in which he must be understood, 
if we would not make him contradict himself He may 
have dreaded, he may have abhorred, the act of secession ; 
and he may, therefore, have pronounced it wrong in the 
forum of conscience. But if the Constitution does not 
authorize coercion, then it permits secession; or, in other 
words, secession is a Constitutional right, which every 
power on earth is bound to respect as existing under the 
supreme law of the land; a Constitutional right, which the 
Federal Government could deny only hj an act of usurpa- 
tion. 

Coercion is unconstitutional. Coercion is wrong. Coer- 
cion strikes down and demolishes the great fundamental 
principle of the Declaration of Independence, — the sacred 
right of self-government itself. Coercion wages war on 
the autonomy of free States. Secession, on the other 
hand, asserts the right of self-government for every free, 
sovereign, and independent State in existence. 

Virginia did not favor secession. But when the hour 
of trial came, she stood in the imminent, deadly breach 
between the secession of South Carolina and the coercion 
of Massachusetts; receiving into her own broad bosom the 
fatal shafts of war, till she fell crushed, bleeding and ex- 
hausted to the earth. I aj^peal to the universe, then, if 
her course was not noble, heroic, sublime. 

Massachusetts has, on the contrary, favored both seces- 
sion and coercion by terms. ylChe pilgrim fathers of Mas- 
sneliusctts delighted in two tiling's; lirst, in the fi-eedom 
from persecution for themselves; and, secondly', in the 
sweet privileg-e and power to persecute others. In like 
manner, llioir sons liavc rejoiced in two things; first, in 
■^he right of self-government for themselves; and, secondly, 
in the denial of that right to others. 



IS DAVIS A TRAITOR? 155 

Argument from the opinion of well-informed and intelligent 
foreigners. 

■ The position that secession is a Constitutional right, 
flowing from the idea that the Constitution is a compact 
between sovereign States, is adopted by many impartial 
foreigners, who have been at the pains to examine our 
institutions for themselves. Thus, says M. De Tocqueville, 
in his celebrated work on "Democracy in America:" 
" The Union was formed by the voluntary agreement of the 
States ; and in uniting together they have not forfeited 
their nationality, nor have they been reduced to the condition 
of one and the same people. If one of the States choose to 
withdraw from the compact, it icoidd be difficult to disprove 
its right of doing so, and the Federal Government would have 
no means of maintaijiing its claims directly either by force or 
right."* In like manner, Dr. Mackay says : " The Federal 
Government exists on suiferance only. Any State may, 
at any time, Constitutionally withdraw from the Union, and 
thus virtually dissolve it. It was not certainl}^ created 
with the idea that the States, or several of them, would 
desire a separation ; but whenever they choose to do it, they 
have no obstacle in the Constitution.'" Mr. Sj)ence also, to 
whom we owe this extract from Dr. Mackay, comes to the 
conclusion, in his able .work on "The American Union," 
that secession is a Constitutional right. I^ay, he unan- 
swerably establishes this conclusion, by facts which lie on 
the very surface of American history, and which, however 
they may be concealed or obscured by the influence of 
part}^ passions at home, cannot escape the scrutii:(y of 
impartial foreigners, who may simply desire to ascertain 
the truth in regard to such questions. After referring to 
the opinions of M. De Tocqueville and Dr. Mackay, Mr. 
Spence very justly remarks: "Here, secession is plainly 
declared a Constitutional right, not by excited Southern- 
ers, but by impartial men of unquestionable ability. "■\ 

* Vol. i, Chap, xviii. p. 413. f The American Union, p. 201, 



156 IS DAVIS A TRAITOR? 

An intelligent foreigner, as De Solme, in his admirable 
treatise on the Constitution of England, observes, pos- 
sesses some very decided advantages in the study of the 
fundamental institutions of a country. This is sj)ecially 
true in regard to all questions, which have been drawn 
into the vortex of party politics, and mixed up with the 
struggle for power and the emoluments of office. Never 
has its justness been more forcibly illustrated, than in 
regard to the conflicting theories of the Constitution of 
the United States. Though Lord Brougham, to select 
only one example, most profoundly sympathized with the 
abolitionists of the North; j^et, in spite of allhis natural 
affinities, the simple facts of history constrained him to 
adopt the Southern view of the Constitution. Hence, in 
his work on Political Philosophy, he says: "It is plainly 
impossible to consider the Constitution which professes to 
govern this whole Union, this Federacy of States, as any 
THING OTHER THAN A TREATY."* Accordingly, he speaks 
of the American Union of States, as "the Great League." 
It required no great research, or profound logic, to reach 
this conclusion. On the contrary, it requires, as we have 
seen, the utmost effort to keep facts in the back-ground, 
and all the resources of the most perverse ingenuity, to 
come to any other conclusion. It is, indeed, only necessa- 
ry to know a fcAV facts, with which every student of our 
history is perfectly familiar, and which are well-stated by 
Lord Brougham, in order to recognise the fundamental 
principle of the "Great League." "The affairs of the col- 
onies," says he, " having during the revolutionary war 
been conducted by a Congress of delegates for each, on 
the restoration of peace, and the final establishment of 
their independence, they formed this Federal Constitution, 
which was only gradually adopted by the different members of 
the Great League. Nine States having ratified it, the new 
form of government went into operation on the 4th of 

*Yol. iii. chap. xxx. p. 336. 



IS DAVIS A TRAITOR? 157 

March, 1789. Before the end of 1790 it had received the 
assent of the remaining States." These facts alone, it is 
believed, are absolutely decisive in favor of the position, 
that the American Union "was a voluntary association of 
States, or a compact to which the States were the parties. 
Hence it is that foreigners, whether impartial or pre- 
judiced against the South, adopt the vSouthern view of 
the Constitution, when they examine the subject with the 
least care. 

It is natural, indeed, that foreigners, before they exam- 
ine the subject, should look upon the American people as 
one consolidated nation; for that is the external appear- 
ance which they present to those who view the affairs 
of this continent from a distance. But like a multiple 
star, which in the distance seems to be a single lumina- 
ry to the naked eye, the American Union is no sooner 
approached, or more closely examined, than it is resolved 
into a constellation of sister States. Nothing but party 
passion, it is believed, can resist so plain a conclusion ; 
just as the clearest revelations of the telescope were vehe- 
mently denied by many of the most learned cotemporaries 
of Gallileo. Hence it is that De Tocqueville, and Mackay, 
and Spence, and Brougham, and Cantu,* and Heeren,f as 
well as other philosophers, jurists and historians among 
the most enlightened portions of Europe, so readily adopt 
the Southern view of the Constitution, and pronounce the 
American Union a confederation of States. 

Argument from the Virginia Ordinance of Batification. 

A great many unfounded objections were urged against 
the Constitution by its enemies. Mr. Madison has, in the 
thirty-eighth number of the Federalist, drawn a powerful 
picture of "the incoherence of the objections to the plan 
proposed;" that is, to the Constitution of '87. Now this 

" Historie Universelle, originally written in Italian, vol. 17, p. 371. 
t " European States and Colonies," p. 350 — 351. 



158 , IS DAVIS A TRAITOR? 

chaos of conflictiBg objections, which were raised bj the 
enemies of the Constitution in order to defeat its adoption, 
could not truly reflect the nature and design of that plan 
for the government of the Union. Yet, however strange 
it may seem, Mr. Justice Story and Mr. Webster have, 
as we have seen,* selected one of these objections to shoAV 
what the Constitution is ; though this very objection had 
been most triumphantly refuted by Mr. Madison, both in 
the Federalist and in the ratifying Convention of Virginia. 
By the same sort of logic, if logic it may be called, they 
might have fastened almost any other absurd interpreta- 
tion on the Constitution, as well as the construction that 
it was ordained by the people of America as one nation, 
and not by the several States. By appealing to the objec- 
tions of Patrick Henry alone, as an authority, they might 
have proved that there was "not one federal feature" in 
the Constitution of '87, as well as a dozen other glaring 
absurdities; and that the fat*hers of the Constitution did 
not know what they were about when they called the 
work of their own * hands, " T/ie Federal Government of 
these States." 

In the ratifying Convention of Virginia, Patrick Henry 
frequently dwelt, with great earnestness, on the danger of 
entering into a new and untried Union, from which there 
might be no escape. Virginia is now free, said he, and the 
mistress of her own destiny. But once in the new Union, 
the power of the General Government may be wielded for 
her injury and oj^pression. This result was, in fact, elo- 
quently predicted by Patrick Henry, George Mason, Wil- 
liam Graj'sooi, and other members of the same Convention. 
This argument proceeded on the supposition, either that 
Virginia would not have the right to secede from the 
Union, or else that this right would be denied by her op- 
pressors. The debates in the Virginia Convention of 1788 
are, indeed, replete with passages of burning eloquence, 

* Chap, xi, pp. 84-5. 



IS DAVIS A TRAITOR? 159 

w^hich predict the calamities that would fall on that noble 
State, as well as on ot|jer Southern States, from the op- 
j)ressions of "the Northern majority." Hence, the people 
of Virginia, in their ordinance of ratification, took the pre- 
caution to guard against this danger, by expressly reserv- 
ing the right to resume the powers delegated to the Federal 
Government "whensoever the same shall be perverted to 
their injury or oppression." 

The view which Virginia has taken of her own ordi- 
nance is disputed. The words of this ordinance are as 
follows:' "We, the delegates of the people of Virginia, 

duly elected, &c Do in the name, and in behalf 

of the peojDle of Virginia, declare and make known, that 
the "powers granted under the Constitution, being derived from 
the people of the United States, be resiwied by them xvhensoever 
the same shall be perverted to their injury or ojypression." 

Mr. Webster understood these words, "the people of 
the United States," precisely as he understood them in the 
preamble to the Constitution. Hence, he quotes the Vir- 
ginia ordinance of ratification, in order to show that the 
Constitution was established, not b}^ the States, nor by 
the people of the States, but by " the people of the United 
States in the aggregate," or as one nation. But, as we 
have repeatedly seen, this is a false view of the words in 
question. They were not so understood by the Virginia 
Convention of 1788. In that Convention, Mr. Madison 
most clearly and fully explained these words, precisely as 
he had previously done in The Federalist. The powers of 
the new government are derived, saicUie, from the people of 
the United vStates, "but not the people as» composing one 
great society, but the people as composing thirteen sovereign- 
ties." Such was the meaning of the words in question, 
as explained by James Madison, to whom the Convention 
looked for information on the subject, and by whom they 
were led to adopt and ratify the Constitution. Yet these 
words are quoted by Webster, Everett, and other politi- 



160 IS DAVIS A TRAITOR? 

cians of Massachusetts, in order to show that, in the opinion 
of the Virginia Convention of 17^, the Constitution of the 
United States was ordained bj- the people of Amei-ica as one 
nation ; and that tlie people of America as one nation may, 
therefore, resume the delegated powers "whensoever they 
shall he 2)ei"verted to their injury or oppression." To 
this interpretation and inference, there are several insuper- 
able objections. 

In the first place, the Constitution was not to be estab- 
lished by the people of America as one nation, or by " the 
people of the United States as one great society;" and 
this fact was perfectly well known to the Virginia Con- 
vention of 1788. It has already been sufficiently demon- 
strated, that the Constitution was ordained, not by the 
people of America as one great society, but by each Peo- 
ple acting for itself alone, and to be bound exclusively by 
its own voluntary act. It would be a gross solicism in 
language, as well as in logic, to say that the people of the 
United States as one great society, might resume powers 
which were not delegated by them. The sovereignty which 
delegates, is the sovereignty which resumes; and it is 
absurd to speak of a resumption of powers by any other 
authority, whether real or imaginary. 

In the second place, the evil intended to be remedied 
shows the true meaning of the words in question. The 
Virginia people did not fear, that the people of the Uni- 
ted States might pervert the powers of the Federal Gov- 
ernment for their own oppression. Their fears were for the 
weak, not for the stuong; not for the people of the United 
States in the ^a'sreffate, but for the Southern States in 
the minority; and especially for the State of Virginia. 
They feared, as the burning eloquence of Henry, and 
Mason, and Monroe, and Grayson evinced, that the new 
Government would "operate as a faction of seven States 
to oppress six;" that the Northern majority would, sooner 
or later, trample on the Southern minority. They feared, 



IS DAVIS A TRAITOR? 161 

in the language of Grayson, that the new Union would 
be made "to exchange the poverty of the North for the 
riches of the South." In the words of Henry, "This 
Grovernment subjects every tiling to the Northern major- 
ity. Is there not, then, a settled purpose to check the 
Southern interest? We thus put unbounded power over 
our property in hands not having a common interest with 
lis. How can the Southern members prevent the adoption 
of the most oppressive mode of taxation in the Southern 
States, as there is a majority in favor of the Northern 
States? Sir, this is a picture so horrid, so wretched, so 
dreadful, that I need no longer dwell upon it."* Did the 
Convention of Virginia, then, seek to quiet these dreadful 
apprehensions, by declaring, that the people of the Uni- 
ted States "as one great society," might resume the pow- 
ers of the Federal Government whensoever they should 
be perverted to their oppression? By declaring, that this 
one great society, or rather the majority of this society, 
might resume the powers of the Federal Government 
whensoever they should be pleased to use them for the 
oppression of the minority? Could any possible interpre- 
tation render any legislation more absolutely ridiculous? 
It puts the remedy in the hands of those from whom the evil 
is expected to proceed ! It gives the shield of defence to the 
very power which holds the terrible sword of destruction I 
The Convention of Virginia spoke "in behalf of the 
people of Virginia;" and not in behalf of the overbearing 
majority, by whom it was feared these people might be 
crushed. They sought to protect, not the people of Amer- 
ica, who needed no protection, but the peoj)le of Virginia™ 
Hence, as the people of Virginia had delegated powers to 
the Federal Government, the}^ reserved "in behalf of the 
people of Vii'ginia," the right to resume those powers 
whensoever they should be perverted to their injury or 
oppression. 

* Elliot's Debates, Vol. iii, p. 312. " 



162 IS DAVIS A TRAITOR? 

Now this reservation enures to the benefit of all the 
parties to the Constitutional compact; for as all such com- 
pacts are mutual, so no one party can be under any 
greater obligation than another. Hence, a condition in 
favor of one is a condition in favor of all. This well- 
known principle was asserted by Mr. Calhoun in the great 
debate of 1833, with the remark that he presumed it 
would not be denied by Mr. Webster; and it was not de- 
nied by him. Hence any State, as well as Yirginia, had 
the express right to resunie the powers delegated by her 
to the Federal Government, in case they should be per- 
verted to her injviry or oppression. 

But, it may be asked, were the powers of the Federal 
Government perverted to the injury or oppression of any 
Southern State? It might be easily shown, that they 
were indeed perverted to the injury and oppression of 
more States than one; but this is unnecessary, since the 
parties to the compact, the sovereign States by whom it 
was ratified, are the judges of this question.* 

* See Virginia Resolutions of '98; Kentucky Resolutions of '98 
and '99 ; the Virginia Report of 1800, &c., Sue, 



CHAPTEE XVII. 

Arguments against the Right of Secession, 

Having considered t\ie arguments in favor of the right 
of secession, it is, in the next place, proper to analyze and 
disciiss those which have been most confidently urged 
against that right. Among these, none have be,en relied 
on with greater confidence, than those which are supposed 
to flow from the express language of the Constitutio». 
This class of arguments shall, therefore, occupy the first 
place in the following examination and discussion. 

Argument from ''the very tvords" of the Constitution. 

Now this argument comes directly to the point. Let us 
see,, then, these "very words and avowed design of the 
compact"* of 1787, by which the right of secession is 
repudiated and rejected. "The contracting parties," we 
are told, stipulate that " the Union shall be perpetual. "f 
Again, the same writer says, "these States are pledged to 
a perpetual Union;" quoting, as he supposes, the very 
words of the Constitution. But, unfortunately for his 
confident argument, these words are not to be found in 
the Constitution at all. They are evidently taken from 
the old Articles of Confederation! Would it not be well, 
if learned doctors of divinity would only condescend to 
read the Constitution, before they undertake to interpre- 
tate it for the benefit of their confiding flocks? Especially, 

* The Rev. Dr. Hodge on the State of the Country, p. 24. 
t Ibid. p. 25. 



164 IS DAVIS A TRAITOR? 

should they not take some little pains to ascertain "the 
very words of the comj)act" of 1787, before they erect on 
its very words the. grave charge of treason against their 
"Southern brethren?" 

The Constitution, says an English writer, does " express- 
ly prohibit the States from entering into any treaty, alli- 
ance, or confederation, such as the so-called Southern 
Confederacy."* This argument is relied on with great 
confidence. It may be found in all the books, pamphlets, 
and publications, with which the opponents of secession 
have flooded the English public on the "American Ques- 
tion." Yet, as it appears to me, it clearly admits of two 
perfectly satisfactory replies. 

In the ^ first place, the Constitution, or the new "Arti- 
cles of Union," is obligatory only upon the members of the 
Union, No one supposes that the States could, while 
remaining in the Union, form any other "treaty, alliance, 
or confederation." But their duty while in the Union is 
one thing, and their right to withdraw from the Union is 
quite another. In the articles of any partnership, whether 
great or small, a clause' may be dnserted forbidding the 
parties to enter into any other partnership of the same 
kind, or for the same purpose. Indeed this is often done. 
But who, for a moment, ever imagined that such a clause 
would render the partnership perpetual, or forever pre- 
vent any of its members from withdrawing from the firm? 

In the second place, the tvords in question were trans- 
ferred from the old to the new "Articles of Union." Thus, 
say the old Articles, "No two or more States shall enter 
into any treaty, confederation, or alliance whatever 
between them."f Now this clause was binding as long as 
the Confederation continued. But did it prohibit "any 
two or more States" from withdrawing from the Union, 
in order to establish " a more perfect" one? By no 
means. It is, on the contrary, perfectly notorious, that 

* Ludlow's History of the United States. f Art. VI. 



IS DAVIS A TRAITOR? 165 

some of the States did withdraw from that Union in order 
to form the Union of 1787. Ilencc, nothing but the blind 
force of passion can render this clause more obligatory in 
the new "Articles of Union," or in the Constitution, than 
it was in the old one. 

Nay, if words could have made any union of States per- 
petual, the old Articles of Confederation would still form 
the supreme law of the American Union. For the thir- 
teenth Article expressly declares, that "the articles of this 
confederation shall be observed by every State, and the 
Union shall be perpetual; nor shall any alteration at any 
time hereafter be made in any of them, iinless such altera- 
tions be agreed to by a Congress of the United States, a7id 
be afterward confirmed by the Z/cgislatures of every State." 
Yet, in spite of, these words, some of the States did with- 
draw from that "perpetual union," and formed a new one. 
The people of 1787 refused to be bound by the peoj)le of 
1778. They deemed themselves no less sovereign than 
their predecessors. Hence, in the words of the English 
writer above-quoted, "the plan of course failed, like all 
similar attempts to fetter future legislation."* 

No words, and no principle of law or justice, could render 
such Articles of Union forever binding on free, sovereign, 
and independent States. Nothing but passion, or brute 
force, could have compelled the millions of 1865 to bend 
their necks to the legislation of 1787 against their will. 
The Union of '87 owed its existence to secession from a 
voluntary association of States; and, being itself a volun- 
tary association of States, it could not escape from the 
law of its creation. The right of secession was, indeed, 
the law both of its origin and its existence. 

The English writer, who argues so confidently against 
the right of secession from the words of the Constitution, 
does not seem to have been at all aware that those words 
were borrowed from the old Articles of Confederation, 



* Ludlow's History of the United States, pp. 143 — 4. 



166 IS DAVIS A TRAITOR? 

or that the Convention of 1787 had -understood them very 
diflferently from himself. The people of this country were 
bound by the legislation of 1787, not by Mr. Ludlow's 
mistakes and blunders respecting that legislation. 

The right of coercion is sometimes deduced from that 
clause of the Constitution, which contains the President's 
oath of ofiice, and which requires him to "preserve, pro- 
tect, and defend the Constitution of the United States." 
This is, indeed, the great argiynent against secession from 
the words of the Constitution. But.it is a gross solicism; 
a petitio principii as plain as possible. For, if by and 
under the Constitution, a State has a right to secede from 
the Union ; then the President is sworn to preserve, not 
to destroy, this Constitutional right. Hence, when it is 
argued that the President is bound to coerce in order to 
preserve, pi"otect, and defend the Constitution; it is 
assumed that, in the view of the Constitution, secession is 
wrong and coercion is right ; which is very clearly to beg 
the question. It takes the very point in dispute for 
granted. Such an argument, such a fallacy, may have 
satisfied those who were passionately bent on coercion ; 
but, in the eye of reason, it is wholly destitute of force. 
If a State had the Constitutional right to secede, and did 
secede, then she was out of the Union ; and the President 
had no more power to execute the laws of the United 
States within her limits, than he had to enforce them in 
the dominions of Great Britain, or France, or Eussia. The 
President's oath of office requires him, not to usurp anj^' 
power, but only to exercise those which are conferred on 
him by the Constitution. 

Argument from the Wisdo7n of the Fathers. 

An argument against the right of secession is deduced 
from the wisdom of the framers of the Constitution. It 
is supposed, that men who were so remarkable for their 
sagacity and wisdom, would not have undertaken to erect 



IS DAVIS A TRAITOR? 167 

a grand Confederacy of States, and yet have been so 
absurd as to allow a State to secede from it. It is argued, 
that they could not have intended to astonish the world 
with the " extraordinary sjDectacle of a nation existing 
only at the will of each of its constituent parts."* 

This argument, Avhieh is urged by Judge Story, and 
others, amounts simply to this, that the fathers of the 
Constitution could not have been such fools as to make a 
compact between the States. For it is conceded, that this 
extraordinary spectacle, this wonderful exhibition of 
weakness, results from the doctrine that the Constitution 
is a compact between the States. The conclusions, says 
Mr. Justice Story, "which naturally flow from the doc- 
trine that the Constitution is a compact between the 
States," "go to the extent of reducing the government to 
a mere confederacy during pleasure ; and of thus present- 
ing the extraordinary spectacle of a nation existing only 
at the will of each of its constituent parts." Hence, in 
the opinion of Judge Story, all that is vronderful in this 
spectacle resolves itself into the most unaccountable fact, 
that the fathers should have framed "a compact between 
the States"! A thing which has been frequently done in 
the history of the world, and which, as we have seen, was 
actually done by the Convention of 1787. It is impossible, 
exclaims Judge Story; we simply reply, it is a fact. A 
learned. doctor, in one of Moliere's plays, argues that, after 
taking his remedy, it was impossible that his patient 
should have died. But the poor sei'\'^ant, who was not 
blessed with half the doctor's learning or ingenuity, was 
weak enough to believe that the fact of his death was 
some little evidence of its possibility. The question is, 
not what the fathers in the opinion of one of the sons, 
ought to have done, but what they have actually done. 

The son in question, for example, is shocked and aston- 
ished at the "extraordinary spectacle of a nation existing 

* Story's Commentary on the Constitution. Book lii. ch. iii. 



168 IS DAVIS A TRAITOR? 

at the will of its constituent parts." If this very learned 
son had only possessed a little more wisdom, he would 
never have discovered, perhaps, this wonderful spectacle 
of "a nation," with "its constitutent parts," or subordi- 
nate fractions. He would, on the contrary, have seen that 
the sovereign States which he calls " the constituent 
parts," or the fractions, of his imaginary nation, are really 
I the units of a confederation. I am rather inclined to 
doubt, therefore, 'whether such a son is the fittest of all 
possible tribunals before which to try the wisdom of the 
fathers. 

After all, perhaps, it was no want of wisdom in the 
fathers, but only the conceit of wisdom in ourselves, which 
causes their work to present so "extraordinary a specta- 
cle." Indeed, if we infer the nature of their work, not 
from an examination of what'they have actually done, but 
from their wisdom, do we not reason from our own notions 
of wisdom? And are we not in danger of interj)olating 
their conceptions with our own devices ? The better 
method is to listen to the great teacher, Time, which esti- 
mates their wisdom from the nature of their work, and 
not the nature of their work from their wisdom. 

The question is, not what the fathers, as reasonable 
men, ought to have done; but what they have actually 
done. Perhaps their wisdom, even if perfect in itself, was 
sometimes held in abeyance by the prejudices, the pas- 
sions, and the interests by which it was surrounded. But, 
for the sake of argument, let us suppose that the new 
Constitution was made perpetually binding on the States, 
that the right of secession was excluded; and then ask 
ourselves, what sort of spectacle would such a work pre- 
sent to the minds of reasonable men ? Would it not appear 
far more extraordinar}^, than if the right of secession had 
been recognized? Let us examine and Bee. 

The scheme of a perpetual Union, excluding the right 
of secession, proceeded on the supposition, that a perpet- 



IS DAVIS A TRAITOR? 169 

ual peace, good ftiith and good will, would subsist among 
the States. This was the idea of Madison. The predic- 
tions of George Mason and others, in which they foretold 
the wrongs and aggressions of the Northern! States, if 
armed with the formidable powers of the new govern- 
ment,* Mr. Madison just set aside as unfounded and un- 
charitable suspicions.! Now, in regard to this point, wo 
need not ask who was the wiser of the two, George Mason 
or James Madison, nor need we try the question by any 
imperfect notions of our own. For Time has pronounced 
its irreversible verdicL in favor of the wisdom of George 
Mason. 

Again, as each State bound its citizens to render allegi- 
ance to the Federal Government by its own voluntar}^ act, 
namely, the act of accession to the Constitution; so, if by 
her own sovereign will in the same way expressed, she 
may absolve them from that allegiance ; we can well under- 
stand the reasonableness of the arrangement. But if she 
may not secede, or withdraw the allegiance of her citizens 
from the Federal Government; then it would "be impossi- 
ble for them to escape the crime of treason. For, although 
the State should be driven by oppression to withdraw 
from the Union, her citizens would, according to such a 
scheme, be indissolubly bound by a double allegiance. 
Hence, if they should follow or obey their own State, they 
might be pursued and hunted down as traitors to the Fed- 
eral Government. Or, if forsaking the State to Avhich 
their allegiance was originally and exclusively due, they 
should adhere to the Federal Government, they would be 
traitors to their own State, and so regarded. There 
would be no possible escape for them. Now, were such a 
scheme wise, or reasonable, or just ? Would it not, on the 
contrary, present a monstrous spectacle of cruelty and 

* Elliott's Debates, vol. 3, pp. 30-164-149-156-161-164-173-174- 
590. 

t Ibid. 530-662. 

9 



170 IS DAVIS A TRAITOR? 

oppression ? Can we believe that the fathers, in order to 
secure the liberty of their descendants, erected such an 
engine of tyranny? Can we believe that they intended, 
in any event, to crush and grind their posterity thus 
between the upper and the nether millstones of the two 
governments? But whatever they may have intended, or 
designed, such is the horrible character of the two govern- 
ments in one, as explained by the very learned son in 
question. If his explanation be true, then it must be 
admitted, that the fathers, with all their wisdom, first 
constructed one of the most horrible engines of oppression 
the world has ever seen, and then pronounced it a scheme 
to " secure the blessings of liberty to themselves and their 
posterity." But I have too much respect for the wisdom of 
the fathers to construe their work into any such tremen- 
dous and terrific engine of oppression. On the contrary, I 
believe that as the allegiance of the citizen was originally 
and exclusively due to his State, and was extended to the 
Federal Constitution only by a sovereign act of his State; 
so, by a like sovereign act, the State may reclaim his 
supreme allegiance. Otherwise, the machine invented by 
the Convention of 1787, would divide the citizen from 
himself; putting the noblest and warmest affections of his 
heart on the one side, and his highest allegiance on the 
other; so that, in case of a conflict between his State and 
the Federal Union, he must be inevitably lacerated and torn 
by the frightful collision. The fathers always admitted, 
that the noblest and warmest affections of the citizen 
would cluster around and cling to the State in which he 
was born, and to which his allegiance was, at first, exclu- 
sively due.* Did they mean, then, that in case of a con- 
flict between a State and the Union, and the secession of 
the former, the strongest affections of the citizen should 
be with the one, and his supreme allegiance with the 
other. I have too much respect for the wisdom and the 
* See The Federalist, Nob. xvii, xviii, xix, &c. , &c. 



IB DAVIS A TRAITOR? 171 

goodness of the fathers, to impute so horrible an intention 
to them; or that they designed, in any event, to set the 
citizen against himself, and rend him asunder by such a 
conflict between the elements of his nature. I believe, on 
the contrary, that it is the intention of the fundamental law 
instituted by them, that the allegiance of the citizen 
should go with his affections; and cling to the sovereign 
will of the State in which he lives, whether that leads 
him into or out of the Union. 

"It is not easy," said one of the most sagacious of the 
fathers, " tc be wise for the jjresent ; much less for the 
future." How true! and especially with reference to the 
institution of a new government! Perhaps, if the fathers 
had only had a little more of this wisdom, for the future, 
they would have more profoundly considered the great 
question of secession, and settled it beyond the possibility 
of dispute in the Constitution framed by them. If, for 
instance, in the solemn comjDaet between the States, they 
had expressly declared that any one of the sovereign parties 
to it might secede at pleasure; this would, it is believed, 
have produced the most happy result. The known and 
established fact, that the Union depended on the will 
of its members, would certainly tend to beget that mutual 
forbearance, moderation, good-will, and sympathy, with- 
out which no federation of States is desirable. The wis- 
dom of the fathers might, in such case, have appeared far 
less conspicuous to some of the sons; and yet it might 
have saved the sons from the terrible war of words, and 
deeds, and blood, by which the civilization of the 19th 
century has been so horribly disgraced. It m-ight have 
appeared a most "extraordinary spectacle" in theory; and 
yet, in practice, it might have spared the world the infi- 
nitely more extraordinary spectacle of the war of 1861. 
^~J^ shall conclude my reflections on this argument, with 
Jrthe following judicious observations of Mr. Spence: "It 
would appear," says he, "the true policy of such a oonfed- 



172 IS DAVIS A TRAITOR? 

\ 

\ eration tqi remove all doubt, and carry out clearly the 

i principles of its origin, by openly declaring the right of 

I secession. Had this been done from the first, there would 

probably have been no secession this day. The surest 

: way to end the desire for any object, is to give unlimited 

command of it. Secession has mainly occurred because it 

was denied. How beneficial the consequence, had it been 

/an admitted right for the last forty years! In place of 
the despotic use of political power, in contempt of the 
feelings or interests of other portions of the country, 
whether of the slave-owners or monopolists — there would 
have been all along a tempering, moderating influence. 
Abolitionism, in all its extremes of virulence, has been 
permitted by the North because the South was considered 

\, to be fast. It might writhe under it, but it must abide. 
But for this unfortunate belief, the intelligence of the 

I North would have said, 'If to gratify your passionate 
opinions, you indulge in such language as this, addressed 
to your fellow-citizens, they will separate from us; we will 
not have the Union destroyed, at your bidding and pleas- 
ure.' In like manner, when the manufacturers desired to 
increase protection to outrageoiTS monopoly, that intelli- 
gence of the North would have said to them, 'Our sister 
States shall not be driven from the Union in order to 
increase your profits.' The same rule will apply to exter- 
nal afPairs. Texas would not have been annexed and be- 
slaved, no Mexican spoliations — no war of 1813 — no 
Ostend manifestoes need have defaced the history of the 
country. Throughout the range of political affairs there 
would have been present that influence so constantly 
absent — consideration for others. The sovereignty of the 

I people is a despotism untempered by division or check. 

I The denial of secession has invited it to act despotically — 

I to do simply as it listed, regardless of those supposed to 

Vhave no escape from endurance. The more the subject is 

examined, the more plainly it will appear that under an 



IS DAVIS A TRAITOR? 173 

[admitted right of secession, there would never have grown 
'up to dangerous magnitude those causes which now pro- 
duce, — and that in so terrible a form — the disruption of 
the Union. "Without those causes, had the feelings and 
interests of others been fairly and temperately considered, 
[the Union might have existed as firmly this day as at any 
former period of its history. 



mmion oj 



Argument from the opmion of Mr. Madison. 

In the Biographical Memoir of Daniel "Webster, prefixed 
to his works, Mr. Everett says: "The opinion entertained 
of this speech, (the speech of 1833), by the individual 
who, of all the people in America, was the best qualified 
to estimate its value, may be seen from the following let- 
ter of Mr. Madison, which has never before been pub- 
lished. 

" MoNTPELiER, March 15th, 1833. 

My Dear Sir :—I return my thanks for the copy of your late very 
powerful speech in the Senate of the United States. It crushes nul- 
lification, and must hasten an abandonment of secession." 

Now on what ground Mr. Madison could have based 
this opionion, at least in so far as it relates to secession, it 
is difficult to conceive. The fundamental premise of Mr. 
Webster, that "the Constitution is not a compact between 
sovereign States," and which is adopted as the title of his 
speech, was certainly not approved by Mr. Madison ; for 
this premise, beside being, in direct opposition to the doc- 
trine of his whole life, is denied again in the very letter 
in which the above compliment is found. Mr. "Webster 
has, indeed, very little to say against secession. His argu- 
ment is almost exclusively directed against "nullification," 
the point then in debate between himself and Mr. Cal- 
houn. But the little he has to say against secession, is 
based on the idea that the Constitution is not a compact 
between sovereign States. Every ai'gument, and every 

* American Union, p. 245 — 6. 



174 IS DAVIS A TRAITOR? 

assertion, levelled by him against secession (and they are 
but few in number), have no other than this false founda- 
tion. Hence, Mr. Madison could not have approved or 
applauded the argument of Mr. Webster against secession, 
because he regarded his premise as sound ; for he was most 
profoundly convinced that it was false. On what ground, 
then, could Mr. Madison have admired this argument ? 

If the Constitution is a compact between sovereign 
States, as Mr. Madison always contended it was, then Mr. 
"Webster admits, as we have seen, that the right of seces- 
sion follows. Thus, this right is conceded by Mr. Web- 
ster to flow from the premise which Mr. Madison always 
regarded as perfectly and unquestionably true. How, in 
the face of such a concession, Mr. Madison could have 
pronounced the opinion, that Mr. Webster's argument 
"must hasten the abandonment of secession," it is exceed- 
ingly difficult to conceive. The acknowledgment that 
the right of secession flows from a position too plain to 
be denied, would tend, as one would suppose, to hasten its 
adoption, rather than its abandonment. How then could 
Mr. Madison have said otherwise? 

The truth seems to be, that Mr. Madison was more 
solicitous to preserve the integrity of the Union, than the 
coherency of his own thoughts. He commends Lycur- 
gus for having sacrificed his life to secure the perpetuity 
of the institutions he had taken so much pains to estab- 
lish. * For the same purpose, Mr. Madison sacrificed, not 
his life, but his logic. 

Is it not truly wonderful, that Mr. Madison who, on 
most subjects, sees so clearly and reasons so well, should 
fall into such inanities about secession? From his con- 
duct, as well as from his confession in The Federalist, -f it 
is evident, that he considered it a dutj'' to veil the idea of 
this riglit, unless a proper occasion should arise for its 
assertion. But how imperfectly his arguments and. oj)in- 

* Federalist, No. xxxviii. t No. xliii. 



IS DAVIS A TRAITOR? 175 

ions perform this higli office of concealment! He would, 
no doubt, have done better, if better arguments against 
the right of secession could have been found or invented. 
As it is, the ineffable weakness of his views in opposition 
to the right of secession, shows how high and impregna- 
ble is the position which that right occuj)ies. 

Mr. Madison greatly feared that Virginia and New York 
would, in their ordinances of ratification, expressly reserve 
the right to secede from the Union. This apprehension 
18 most vividly set forth in his correspondence with Mr. 
Hamilton, in regard to the proposed conditional ratifica- 
tion of New York ; from which it has been most confident- 
ly inferred, that neither Yirginia nor New York did reserve 
such right. But what Mr. Madison desired, and what 
those States did, are two -very distinct things. If we 
really wish to know what those States did, we should, 
it seems to me, look at their recorded acts, rather than at 
what Mr. Madison desired them to do. The conditional 
ratification of Yirginia was in direct opposition to the 
wishes of Mr. Madison. His wish, then, however great 
his influence, could not always control the action of his 
own State, much less that of New York. 

Hamilton and Madison both desired a strong "national 
government." It was owing to their influence, that the 
first resolution of the Convention of '87 in favor of such a 
government, was passed. But, as we have seen ;* although 
that resolution was afterward set aside by the Convention, 
Mr. Webster and Judge Story argue from its momentary 
existence, that the Convention of '87 actually established 
"a national government." In like manner, it is most 
confidently inferred from the wish of Mr. Madison, ex- 
pressed in his private correspondence, that neither Yir- 
ginia nor New York expressly reserved the right of 
secession in its ordinance of ratification ! Was Mr. Madi- 
son's wish the law of Yirginia and of New York ? And if 

* Chat), iv. 



176 18 DAVIS A TRAITOR? 

■we want to know what those States actually did, must 
Mr. Madison's wish pass for everything, and their solemnly 
recorded acts for nothing? 

Mr. Madison, as his correspondence shows, was extreme- 
ly anxious to prevent a conditional ratification of the Con- 
stitution in New York, as well as in Yirginia. He even 
went so far as to advance the extraordinary' proposition, 
that a conditional ratification would be "no ratification at 
all," and would "not make New York a member of the 
new Union." But after Virginia had ratified the Consti- 
tution on the express condition, that its powers should 
not be perverted to her injury or oppression, and had 
reserved the right to resume the delegated powers in case 
that condition should be violated; Mr. Madison retraced 
his steps, and freely admitted- that Virginia was really in 
the Union ! He writes to Hamilton at once, and to Wash- 
ington, in order to do away with the impression, that a con- 
ditional ratification is "no ratification at all," and would 
not make any State a "member of the new Union." In 
regard to the conditional ratification of Virginia, he says: 
it contains ^'■some plain and general truths, that do not impair 
the validity of the act." 

Now from these words of Mr. Madison, it has been 
strenuously argued, that Virginia did not reserve the right 
to resume the powers she had delegated to the Federal 
Government! It is true, as Mr. Madison said, that the 
plain truths referred to, did not impair the validit}^ of the 
Virginia aet of ratification. No one has ever doubted the 
validity of that act; or that it made Virginia a member of 
the new itnion. Nor could any one ever dream of doubt- 
ing such a thing; unless he had previously embraced Mr. 
3Iadison's most extraordinary proposition, that a condi- 
tional ratification is no ratification at all. But, while there 
is no question whatever as to the validity of the act, it is de- 
nied, that it was unconditionally and eternally binding on 
the State of Virginia, or that it could never be repealed by 



IS DAVIS A TRAITOR? 177 

the sovereign power by which it was enacted. Is it not 
wonderful, then, that Mr. Madison's words merely asserting 
the validity of the act in question, which no one has ever 
denied, should be so confidently quoted to prove, that- the 
act must, in any event, stand forever, unrepealed and 
unrepealable, by the power by which it was ordained? 

!N"ow what is "the plain and general truth" to which 
Mr. Madison refers as contained in the Virginia ordinance 
of ratification? It is the truth, that the powers delegated 
to the Federal Government may be resumed in case of 
their perversion ; and that they may be resumed by the 
authority which delegated them. This was a plain truth 
then, and this is a plain truth now. It is indeed universally 
conceded. Neither Story, nor Webster, nor Everett, nor 
Motley, has one syllable to say against this plain and 
incontestable truth. Hence, if Virginia delegated powers 
to the Federal Government ; then Virginia, and Virginia 
alone, had the right to resume those powers. This would 
have been the case, even if no express reservation of that 
right had been contained in her ordinance of ratification. 
But did Mr. Madison deny, that the powers in question 
were delegated by the State of Virginia? If so, then he 
denied a plain fact; and a fact, too, which he invariably 
and earnestly proclaimed from the beginning to the end 
of his career. Even if he denied that fact by implication, 
this would have proved only his inconsistency, and fur- 
nished another instance of the blinding influence of his 
extreme desire to veil the right of secession. 

Argument from the opinion of Hamilton. 

"However gross a heresy," says Hamilton, "it may be 
to maintain, that a party to a compact has a right to revoke 
that compact, the doctrine itself has had respectable advo- 
cates." * This, it should be observed, is said in relation to 
the old Articles of Confederation, which are universally 

* Federalist, No. xxii. 
9* 



178 IS DAVIS A TRAITOR? 

admitted to have formed a compact between sovereign 
States. It was, then, the opinion of Hamilton, that a 
State had no right to secede from a confederacy of States, 
or from the compact by which they are united. If he 
means to assert, that it has no natural or moral right to 
secede at pleasure from a compact, I have at present no 
controversy with him. But if he means that it has no 
legal, or constitutional right to do so, then his own opin- 
ion is "a gross heresy," which has but few respectable 
advocates at the present day. 

<^^ ^or, as we have already seen, both Story and "Webster 
^concede, that the constitution ul right of secession belongs 
to States,, w hich are unitetl by a compactN^JSTow, after"" 
Buch a concession, is it not too late to quote The opinion of 
Hamilton to prove, that the very inference conceded is "a 
gross heresy " ? Yet this is done by Mr. Justice Story. 
In one paragraph, he admits that if the Constitution is a 
compact between the States, then each State may secede 
from that compact at pleasure; and yet, in the very next 
paragraph, he proves out of the Federalist, that* "even 
under the confederation," which is admitted to have been 
founded on a compact between the States, f "it was 
deemed a gross heresy to maintain, that a party to a com- 
pact has a right to revoke that compact;" | or to set it aside 
at pleasure. Thus the very inference which he admits 
in one breath, he pronounces a gross heresy in the next, 
and proves it to be such by the authority of Hamilton ! 

The doctrine which both Story and Webster have been 
constrained to admit, is no doubt entitled to more consid- 
eration than the naked and unsupported opinion of Ham- 
ilton. This opinion seems, indeed, to have grown out of 
his deep and intense desire to consolidate the Union, rath- 
er than form his legal studies and knowledge. He was 
only thirty years of age when the Federalist was written ; 
and his life, with the exception of four years, had been 

* Vol. i, p. 288. fNoTxxih J Vol. i, p. 290. 



IS DAVIS A TRAITOR? 179 

passed in the active duties of the camp, or in his college 
studies. Hence, however great his powers, his knowledge 
of jurispriidence, and of the opinions of the learned, must 
have been exceedingly limited, when compared with those 
who have devoted their lives to this study. If, then, 
Story and "Webster are constrained to admit the right of 
a State to secede from a confederacy bound by a mutual 
compact ; this may surely be taken as an indication of 
the real teachings of the law on the point in question, and 
regarded as a higher authority, than the bare opinion of 
Hamilton. This would be so, even if no progress had 
been made in the science of international law since the 
.time of Hamilton; but, in fact, there has been gi"eat pro- 
gress in this science during the jDresent century; especi- 
ally in regard to the doctrine of compacts between States. 
Enlightened by the principles of that doctrine, Mr. Jus- 
tice Story could not deny the right of one of the parties 
to secede from such "a compact." Hence, he attempted 
the more than herculean labor of recasting the whole 
political history of his country, and moulding it into con- 
formity with his wonderful hypothesis, that the Constitu- 
tion of the United States is not a compact between States 
at all. He first asserts truly, that a State may secede 
from such a compact, and then proves out of Hamilton 
that his own assertion is " a gross heresy" ! " That gross 
heresy," says Hamilton, " has had respectable advocates." 
Mr. Justice Story himself is one of those advocates. Nor 
is this all.vi^he Convention of 1787 advocated the same 
heresy; amd, mor^ox I'lVc^mLodicd it in their legislation. 
"Hami lton msisi ed in tliat Convention, tbul the States had 



no right to revo lve llie existing compact between tlioni, 
or to secede fr om it in order to I'oi'ni anotlier, without 
"the con sent of each a nd every State in tlie Union. But 
Tii s opinion was ove nuled \<y the Convention; and the 
States did, in pursuan ce of tlie decision of tlic Convention, 
withdraw from the existing compact to form a new one. 



180 18 DAVIS A TRAITOR? < 

^"•i TTfli^'lt'^^ "'T ^"'^'^ '^°''" .riglxt^.and the States may 
have been wrong; but, however this may be. their decis-"' 
■"^ti established the supreme law of the land. ^^tTie advo- 
cates of the right of some of the parties t<5 aVompact 
between States to revoke that compact, or to withdraw 
from it, may not have been as respectable as the opponents 
of this doctrine; it is certain that they prevailed in the 
Convention of 1787, and embodied their own views in the 
legislation of the United States. That legislation should 
be our guide, not the defeated opinion of Mr. Hamilton. 
Or, at least if we happen to believe that legislation to 
have been right, and if in conformity with the opinion of 
Mr. Justice Story, we happen also to believe that a State 
may secede from a compact between States; may we 
not humbly hope, that this will not be deemed so "gross a 
heresy" as to be treated as treason and rebellion? 

Argument from the very Idea of a Nation. 

The "very idea of a nation," it is said, is utterly incon- 
sistent with the right of secession. But what is a nation? 
"It is a body politic," we are told, "independent of all 
others, and indissoluhly one. That is, indissoluble at the 
mere option of its constituent pars."^. Thus, the whole 
question is begged, and the whole controversy completely 
settled, by the definition of -'the very idea of a nation." 

How great the triumphs of such logic, and how w^onder- 
ful the displays of such genius! Setting out from "the 
very idea of a nation" in the abstract, and, absolutely 
unembarrassed by any other idea or knowledge in the wide 
world, this argument just reaches, at one simple bound, 
the conclusion, that "as the Abbefville district cannot 
secede from South Carolina; so South Carolina cannot 
secede from the United States;" a profound view and 
striking; illustration which the President from Illinois bor- 
rowed from the Preacher of Princeton. f 

* Rev. Dr. Hodge on the State of the Country, p. 24. 

t Enlightened by the profound view of his reverend guide, Mr. 



IS DAVIS A TRAITOR? 181 

Argument from the purchase of Louisiana, Florida, &c. 

It is, we are told, absurd to suppose that the people 
would have expended so much money for, the purchase of 
Louisiana, Texas, and Florida, if those States could secede 
from the Union.-j- It is not at all probable, that those 
territories were purchased under the belief that they 
would desire to secede, whether they possessed the right 
to do so or not. And besides, it might be easily shown, 
that long being before those States did secede, the govern- 
ment of the United States had realized far more from them 
than she gave for them; which was only a few millions of 
dollars. Hence, even on the theory and the practice of 
secession, the purchase was far from being absurd. On 
the contrary, it was a highly profitable bargain ; and in 
order to justify it, or to show that it was reasonable, it is 
not at all necessary to suppose that the sovereign peoples 



Lincoln, with a naive originality all his own, might wf^ll have asked, 
what is the difference between a county and a State ? Is not a coun- 
ty a little State, and a State a big county ? One striking difference 
must have occurred to him in the course of his reading ; the differ- 
ence, namely, that a State is spelt with a large S, and a county with 
a small c. He must also have observed that a State is sometimes 
called " Sovereign." But whether it is called Sovereign because it 
is spelt with a large S, or spelt with a large S because it is called 
sovereign, is one of the nice questions in the science of government, 
which he does not seem to have very fully considered, or positively 
decided. He had evidently discovered, for he tells us so himself, 
that a Stale is usually larger than a county in the extent of its terri- 
tory ; a discovery which, perhaps, led to the profound and original 
reflection, that the United States have been, and must continue to be, 
one State or Nation, because their territory is one. It is to be hoped, 
indeed, that these sovereign States or counties, as the ease may be, 
shall continue to be united, and that order, tranquility, and happiness 
shall once more bless their Union. But if so, must not something 
beside the ojifi territory help to produce the happy result?. Have 
not simple confederations existed on the same territories? Nay, 
have not some twenty distinct nationalities long existed on the terri- 
tory of Europe? We may, then, hardly trust the reflection, however 
profound, that one territory is in itself a suSiciently active and pow- 
erful cause to produce one very big State, or county, covering a 
whole continent. 

t Hodge on the State of the Country, p. 28. 



182 IS DAVIS A TRAITOR? 

of those States, with their Constitutional rights and priv- 
ileges, were also purchased with the pitiful sum paid for 
their annexation to the United States. They were admit- 
ted as sovereign States, with all the rights of the original 
parties to the compact; and as such wei'e entitled to the 
full benefit of all its provisions. 

Indeed, this ad captandum argument appears exceeding- 
ly weak, if not absolutely ridiculous. Can any purchases 
made by any parties to a compact, alter the terms of that 
compact, or make it more binding that it was before ? If a 
State retained its sovereignty in the Union, and, conse- 
quently, had a right to resume the jDOwers which it had 
delegated to the Federal Government; this right was not 
affected by the purchase of Louisiana, or Florida. To pur- 
chase those Territories is one thing, and to sell the sover- 
eignty of each and every State in the oi'iginal Union is quite 
another. If any State should withdraw from the original 
compact, and thereby dissolve the Union as to itself; then 
the purchase of such Tei'ritories should be considered in 
the final settlement between the parties. But to argue, 
that they were indissolubly and" eternally bound together 
because they made such purchases, seems, to say the least, 
a little ridiculous. 

Argument from Analogy. 

How Avonderful soever it may seem, Mr. Jiistice Story 
argues from analogy as follows : As an individual has no 
right to secede from a State government; so a State has no 
right to secede from the government of the Union. Now 
this argument proceeds on the supposition, that a sover- 
eign State bears the same relation to the Federal Govern- 
m.ent, which it concurred with other States in creating, 
that a county, nay, that an individual, bears to a State. 
Mr. Justice Story was far too learned to endorse so mon- 
strous a heresy explicitly; but it is, nevertheless, tacitly 
assumed as the basis of his argument from analogy against 



IS DAVIS A TRAITOR? 183 

th'e right of secession. His whole theory of the Constitu- 
tion jDoints, it is true, to the conchision so ojocnly avoAved 
by the Eev. Dr. Hodge and Mr. Lincohi, which views a 
State as merely a county of one great consolidated nation; 
but he never reached this conclusion himself, except sur- 
reptitiously, as in the above argument from analogy. 

But even admitting this false conclusion as a postulate; 
the ai'gument of Judge Storj' is by no means as conclusive 
as it appears to his own mind. For the right of an indi- 
vidual to secede from a State government, is daily exer- 
cised by some one or other in every part of the world^ 
An individual cannut, it is true, remain under the govern- 
ment of a State, continuing to enjoy its protection, and, at 
the same time, refuse to obey its mandates. But this were 
nxdlification, woi secession. Tlie only woj" in which an indi- 
vidual can secede from a State, is to withdraw from the 
limits of its dominion; and this right is daily exercised in 
every part of the civilized world, without being called in 
question by a ny_ oncJNA'he Puritans themselves, by whom 
Massachusetts was originally settled, withdrew from the 
government of Great Britain; and quietlj* marched off, 
undisturbed by his Majesty, first into Holland, and then 
. into the New "World. Now sujjpose this right had been 
denied to them? Suppose fire and sword had been used to 
compel the Pilgrim Fathers, those meek and holy apostles 
of freedom, to remain under the government thej^ detested; 
would they not have made the world ring with their out- 
cries at the perpetration of such injustice and tyranny? 
But they were allowed to withdraw to the New "World; 
and there set up the government of their choice. The 
colony of Massachusetts Bay, then, owed its existence to 
the acknowledged right of individuals to secede from the 
government of a State, and enjoy one whose "powers are 
derived from the consent of the governed." 

But a State, united in a confederacy with other States, 
can secede from the government of the union, without the 



184 IS DAYI8 A TRAITOR? 

necessity of changing its location. This makes a diifer- 
ence in the exercise of the right, though not in the right 
itself It is indeed quite impossible for a whole State, or 
people, to change its location, or abandon their homes. 
If the Southern States could have done so, the exodus 
would, no doubt, have been most gratifying to some of the 
descendants of the Pilgrim Fathers of New England. 
This is evident from the eloquent address of Mr. Henry 
Ward Beecher to the excited thousands of Exeter Hall in 
1863. In reply to the question, "Why not let the South 
go?" he exclaimed, "O that the South would go! but then 
they must leave us their lands." If they had only left their 
lands and homes, and plunged into the gulf of Mexico ; 
this great enemy of secession would have hailed the event 
as one niost auspicious for the spread, the aggrandizement, 
and the glory of the race to which he belongs. It would 
have appeared to him, no doubt, like the herd of swine 
which, being possessed of devils, madly rushed into the 
sea, and disaj)peared from the world. But when they 
seceded, without proposing to leave their lands behind; 
this made all the difference imaginable ; being an outrage- 
ous violation of one of the great fundamental articles of 
the Puritan creed, which, in early times, was expressly • 
set forth by the Colony of Connecticut in solemn conclave 
assembled. It was then and there decided, that "the 
earth is the inheritance of the saints of the Lord;" the 
saints having, in their declaration, as is believed, an eye 
to the beautiful locations and lands of the Indians. It is 
certain, if we may judge from the speech of Mr. Beecher 
in Exeter Hall, that some of the most influential of the 
saints had a longing and passionate eye for the beautiful 
lands of the sunny South. 

The truth is, that every constitutional comj^act, whether 
between the people of a single State, or between sovereign 
States themselves, forms a voluntary association ; the one 
between individuals, and the other between sovereign 



IS DAVIS A TRAITOR? 185 

States. Hence, if the right of secession be denied in 
either case, and the denial enforced by the sword of coei- 
cion; the nature of the polity is changed, and freedom is at 
an end. It is no longer a government by conserit, but a gov- 
ernment of force. Conquest is substituted for compact, and the 
dream of liberty is over. 

No man has contributed more to this dire result, than 
Mr. Justice Story, who not only exhausted all the stores 
of his own erudition, and exerted all the powers of his own 
mind, to prove that the Constitution was not a compact 
betw^een the States, but also enlisted" the great powers 
and eloquence of Mr. "Webster in the advocacy of the 
same monstrous heresy. This concealed the great funda- 
mental principle of the Constitution, and kept out of view 
the all-important truth laid down by Mr. Mill, that the 
very first condition necessary to a desirable federation of 
States, " is a sufficient amount of sympath}^ among its 
populations." Nor is this all. His theory of the Consti- 
tution fell in with the corrupt and the corrupting tendency 
of the age; the tendency, namely, to deny the sacred obli- 
gation of " The Compact op the Constitution." For how 
can any compact be held sacred, which is held not to be a 
compact af all, but only the emanation, or creature, of the 
. sovereign will by which its restraints are abhorred? May 
not the creator do what he pleases with its own? May 
not the one great nation, the one sovereign people of 
America, take some little liberties with the w^ork of its 
hands, instead of being scrupulously bound by it as a com- 
pact between the States? Nay, may it not take some 
little liberties wnth the rights of the States themselves; 
since the States, as well as the Constitution, were created 
by its own sovereign will and pleasure ? May it not, in 
short, treat the States as counties ? 

It is possible, indeed, that no learning, or logic, or elo- 
quence could have resisted this terrible tendency, or stem- 
med the mighty torrent of corruption it continually fed 



186 IS DAVIS A TRAITOR? 

and augmented. But this is no reason why learning, and 
logic, and eloquence should have favored its progress. 
That progress was slow, but sure. All power slowly grav- 
itated toward the federal centre, and was there consolida- 
ted by false theories of the Constitution. In the tower- 
ing audacity of that central j)ower, assuming to itself all 
the glories of the ojie grand nation, it was gradually for- 
gotten that honor, and justice in the observance of the 
original compact, (no longer regarded as a compact,) and 
mutual sympathy among the peoples, it was intended to 
unite, are the indispensable conditions of a free and hap- 
py Federation of States; and for these sacred ties of "the 
glorious Union," were substituted the sacrilegious bonds 
of fraud, force, and ferocity. It is no wonder, then, that 
secession should, in the end, have been regarded as the 
greatest of all crimes; since the Union was then held 
together, not by the mutual sympathy or the conciliated 
interests of its peoples, but by "the cohesive power of 
public plunder." Mr. Justice Story, be it said to his eter- 
nal shame, took the lead in constructing the theory of that 
tremendous scheme of despotic power, and the politicians 
of Massachusetts in reducing it to practice. John C. Cal- 
houn, on the contrary, lived and died in opposing all the 
powers of his gigantic intellect to its overwhelming tor- 
rents, both in theory and in practice. 



CHAPTEE XVIII. 

Was Secession Treason? 

.^'^iiE doctrine of sccossion consists of two propositions: 
the lirst asserts that the Constitution Avas a compact 
Between the States; and the second that a State, or one 
of the p a't'tj^gt't, hn.(l a. viuhi. to sccede Irom such a compact. 
The second proposition is simply an inference from the 
fi rst. jS roAV^ if ' seccssioii is at all tainted with treason, the 
crime must lu rk in the one or tlie other of these propqgi- 
tions. s^y 

"""^irn'^asonahle, then, to assert that the Constitution 
■was a compact between the States, or the members of the 
Union ? No one, it is presumed, will venture on so bold 
an assertion; for, as we have seen, this was the doctrine 
of the fathers of the Constitution themselves. It has been 
shown, by an articulate reference to their writings, that it 
was clearly and unequivocally the doctrine of Madison, 
and Morris, and Hamilton, as well as of other celebrated 
architects of the Constitution. Who, then, will pronounce 
it treason, or treasonable? 'vT/te Federalist, in submitting;,, 
the Constitution to the penplr and in pleading the cause 
of its adoption, did not hesitate to say, as a fact then per- 
fectly well and universally known, that the Constitution 
%yas •■the compact"* to which ''the States as distinct and 
independent sovereigns "f were the 2x\rties^/i)id The Fed- 
' eralist 'c^l^onsc treasonable sentiments? ^Sth Hamilton 
and Madison, the two great architects of the Constitution, 
*No. xxix. fNo. xl and No. Ixxxv. 



188 IS DAVIS A TRAITOR? 

most earnestly and eloquently recommended it to the peo- 
j)le in The Federalist and elsewhere as the compact 

BETWEEN THIRTEEN SOVEREIGN AND INDEPENDENT StATES. 

Is that doctrine treason, then? Is there the least sign, or 
symptom, or shadow of treason connected with that senti- 
ment of the fathers? Are those "untrue to their coun- 
try," who say, with all the most illustrious fathers of the 
Union, that the Constitution was a compact between 
the States? On the contrary, are not those untrue to 
themselves, to their country, and to their God, who, in the 
midst of so many unquestionably proofs on all sides around 
them, can assert that the Constitution is not a compact? 
Is it "the dialect of treason" to say that "the States 
acceded to the Constitution?" In other words, is the 
language of "Wilson, and Morris, and Eandolph, and Frank- 
lin, and Jefferson, and Washington, to be denounced as 
"the dialect of treason?" Is it treason to understand the 
Constitution as it was understood by the great patriots 
and statesmen from whose* wisdom it proceeded? Is it 
treason to adhere to their views, sentifhents, and lan- 
guage? Or is it loyalty to depart from their views, senti- 
ments, and language; denouncing them as the inventions 
of modern rebels, and blood-thirsty traitors? No one can, 
or will, venture to answer this question in the aflSrmative. 
Ignorance and passion may have done so in times past. 
But who can read the history of his country, who can 
behold the great fact, that the Constitution is a compact 

BETWEEN THE StATES BLAZING ALL OVER ITS AMPLE PAGES; 

nay, written there by the fathers of the Eepublic them- 
selves; and then deliberately pronounce it a treasonable 
sentiment? Can any man do so? Has any man suflScient 
strength of continence for such an achievement? If so, 
then indeed must his front of brass, and his heart of iron, 
forever remain an incomjDrehensible mystery to all rea- 
sonable men. Nay, if any partj^ or majority, aided by 
the united strength of all their countenances, should pro- 



1 



IS DAVIS A TRAITOR? ' 1^1 

nounce such a fact treasonable ; this would only prove thal> 
they must have been ignorant of the history of their coun- 
try. But, Avhether from ignorance, or from malice, or 
from both, shall it ever be the lot of American citizens to 
live in a land in -which truth shall be treason, and history 
rebellion? Shall it ever come to this — O ye blessed spirits 
of departed heroes and patriots! — shall it ever come to 
this, that a dungeon and a halter awaits the man who may 
have the most devoutly cherished thy sentiments, and 
the most imj^licitly trod in thy footsteps? 

No! it will be admitted, that the doctrine of the fathers 
is not treason. Whether that doctrine be true or false, it 
will be admitted, that it is entitled to the respect of all 
who respect the founders of the Eepublic. Even if the 
fathers did not understand their own work, — a thought 
which is itself almost akin to treason — it is certainly not 
an unpardonable hei'esy to agree with them, or to adojit 
their view of the Constitution of the United States. 

Will it be said, then, that it is treasonable to assert, that 
a State may secede from a compact between States? If 
so, then Story and Webster were both traitors ; for, as we 
have over and over again seen, these most admired 
expounders of the Constitution expressly concede, that a 
State may secede at pleasure from such a comj)act. But, 
here again, even if Storj- and Webster wei'e mistaken in 
this principle of law; it is surely absurd to denounce such 
an error as treason or rebellion. 

or is this all. Precisely the same inference is drawn 
y another great expounder of the Constitution, namely^ 
by AYilliam Eawle, of Philadelphia. The legal opinion of 
Mr. Eawle is entitled to great respect. Mr. Buchanan, late 
President of the United States, speaks of him as follows: 
"The right of secession found advocates afterwards in 
men of distinguished abilities and unquestioned patriotism. 
In 1825 it was maintained bj- Mr. William Eawle, of Phil- 
adelphia, an eminent and universally respected lawyer, in 






190 IS DAVIS A TRAITOR? 

the 23d [32d] chapter of his 'View of the Constitution of 
the United States.' In speaking of him his biographer 
'says that 'in 1791 he was appointed District Attorney of 
the United States;' and 'the situation of Attorney General 
^was more than once tendered to him by "Washington, but 
is often declined,' for domestic reasons."* Now Mr. Eawle 
^wrote his " View," not as a partizan, but simjjly as a jurist 
in the calm and impartial investigation of truth; having 
no conceivable motive to reject the plain teachings of his- 
tory and law. Indeed, as we have seen, he agreed with 
Story and Webster in regard to the principle of law, and 
differed from them only in regard to facts. Hence, if the; 
had not denied that the Constitution was made by th 
States, they would have been compelled, like Mr. Eawle 
to admit the right of secession. 

"/The Union is an association of republics," says Mr. 

Eawle." Again, "we have associated as republics , 

But the mere comjpact, without the means to enforce it, 
would be of little value." f Having annonnced the truth, 
that the Constitution is a compact between republics, he 
drew the inference from this which is admitted to follow 
by Story and "Webster. That is, he inferred, the right of 
secession ; just as if there could be no question on so plain a 
point of law. "It depends on the State itself," said he, 
'^tt retain or abolish the principle of representation, be- 
CATJs'E"iT DEPENDS ON THE State itself whether it con- 
tinues A me:mber of the Union." Again, he says, "the 
States may avithdraw from the Union, but while they 
continue, they must retain the character of republics," as 
well as comply with every stipulation of the constitution- 
al compact " The secession of a State from the Union," 

he continues, "depends on the will of the peopleSCfhe 
Constitution of the United States is to a certain extent, 
incorporated with the Constitutions of the several States 

* Buchanan's Administration, p, 88. 

t Rawle on the Constitutiou, Chap, xxzii. 



IS DAVIS A TRAITOR? ' 191 

by the act of the people." "Nothing is more certain 

than that the act [secession] should be deliberate, clear, and 
nnequivocal. The perspicuity and solemnity of the origi- 
nal obligation require correspondent qualities in its disso- 
lution." 

Now this is the language of a man, of an eminent 
jurist, who was the contemporary and friend of Wash- 
ington. He lived before the rise of those new ideas, and 
dazzling images of power, which afterward obscured 
"the perspicuity and solemnity" of the act by whicli each 
State had acceded to the compact of the Constitution. 
Was not this man of "distinguished abilities and unques- 
tioned patriotism," then, right both in regard to his premise 
and to his conclusion? He took, as we have seen, pre- 
cisely the same view of the Constitution as that taken by 
all his great contemporaries, the fathers of the Constitu- 
tion themselves; and he only inferred from this view the 
right of secession, which, according to Story and AVeb- 
ster, is a legitimate inference? But even if he was not 
right, if Eawle, and Story, and Webster were all in error 
as to the justness of this inference; still were it not the 
very height of absurdity, the very climax of intolerance, 
the very quintessence of malice and persecuting bigotry 
to pronounce such an opinion treason ? 

If, then, any poor benighted son of the South was 
really guilty of treason on account of secession; this 
must have been either because he understood the Consti- 
tution no better than those who made it, or because he 
knew the law of compacts no better than the most cele- 
brated jurists of America ?y^n which horn of this di- 
lemma shall he be hanged? SKaTt"^*15e tried and found 
guihy oi treason7^^r^n oT°°un^erstan the Constitution 

Detter ihan Morris, and Madison, and Hamilton, and 
Washington; or for not knowing the law of compacts 
better than Eawle, and Story, and WeT)s(or?s Tf I'ound 
guilty on either grouud, it is to be hoped that hisbounsel 



192 * IS DAVIS A TRAITOR? 

will move an arrest of judgment, that such distressing 
ignorance was his misfortune, not his fault. 

Massachusetts and the Hartford Convention. 

The facts, proofs, and authorities going to establish the 
right of secession are, indeed, so redundant, so overflow- 
ing, nay, so absolutely overwhelming, that many of them 
have been necessarily omitted in the foregoing argument. 
One of them is, however, quite too important and striking 
to be entirely neglected. Hence it shall be introduced in 
the present place. 

The Virginia Resolutions of '98 wei*e submitted, as the 
reader is doubtless aware, to the Legislatures of every 
State in the Union. These Resolutions contained, as we 
have repeatedly seen, the very doctrine so eloquently 
denounced by Mr. Webster in 1833; the doctrine, namely, 
that the Constitution is a compact between the States of 
the Union. This doctrine was, in fact, made the ground- 
work of that celebrated manifesto. Now it is a remark- 
able fact, that not one of the Legislatures, who replied to 
the Resolutions of '98 called this great fundamental position 
in question. No one at that early day, so near the ori- 
gin of the Constitution, seems to have dreamed that such 
a doctrine was tainted with heresy, much less with trea- 
son. Not a single Legislature seems to have imagined, 
for one moment, that the United States, or the States 
United, did not form a Confederacy, or that its Constitution 
was not a compact. In the answer of the Legislature of 
Massachusetts, Mr. Story's and Mr. Webster's own State, 
by far the most able and elaborate of all the replies to the 
Resolutions in question, thtere is not one syllable or sign 
of opposition to the doctrine, that the States formed a 
Confederacy, or that their Constitution was a compact 
between them. On the contrary, Massachusetts, then and 
there, in her great manifesto in opposition to that of Vir- 
ginia, expressly recognized the truth of that doctrine. 



IS DAVIS A TRAITOR? 193 

That is, in conformity -with the uniform and universal 
usage of the day, she sDoke of the desire of Massachu- 



s etts to "CO-OPERATE WITH ITS CONFEDERATE STATES ;"* and 

also of "tha t solemn compact, which is declared TO BE 

I -fr^ftnwM i n i ^ <i> a i f i T ai »h . ii . - . ii i u .i. »j . . .,„ ^ ,„ — 

JTHF. STTPRTT.ME L^; ^W r^^ '^"^^1 {if^'^^-Jf JV^ «a««'^h""'>^^« WRS 

not, then, one of that mighty clc)ud of M'itnesses, com- 
posed alike of "friends and foes," which Mr. "Webster, with 
his great dark eye "in a fine frenzy rolling," fancied that 
he saw in the air, all uniting in the solemn declaration, as 
with the voice of doom, that compact is no more, that 
Confederacy has fallen, and that thenceforth the sov- 
ereign AVILL OF the one GRAND NATION, THE PEOPLE OP 

America, shall reign forever and ever! On the con- 
trary, poor simple-hearted Massachusetts of 1799 im- 
agined, that a compact, that even a "solemn compact," not 
only might be, but actually was, "the supreme law of the 
land," and that it was under or by virtue of that solemn 
compact that she had, only eleven years before, "confed- 
erated" with her sister States! 

Nor is this all. Massachusetts continued, for some 
years longer, true to the first great article in the creed of 
the fathers. Indeed circumstances greatly favored her 
fidelity, and deepened the fervor of her faith. The acqui- 
sition of Louisiana, which added a vast empire to the 
Southern end of the Union, produced a profound dissatis- 
faction throughout Massachusetts and the other New 
England States; causing "the glorious Union" to wane, 
and the sovereignty of the States to wax, mightily in 
their eyes. ^/''^. At an ea rly period after the formation of 
the Constitution," as ]\Ir. Burliaiian Irulj- says, ''many 
influential individuals of New Eno-Iand became dissatisfied 
with the union between the Northern and Southern 
Starrs, nriiJ (/■;^7,,,/^, Jissolrc iY.'0"This (lesiu,-ii,'' according 
to Mr. John Quinc}- Adams, "Imt^^been formed in the win- 
ter of 1803^, immediately after and in consequence of 

* Elliot's Debates, Vol. 4. p. 563. f Ibid, p. 560. 

10 



194 IS DAVIS A TRAITOR? 

the acquisition of Louisiana."* The embargo and non- 
intercourse laws, which were designed to bring England 
to terms without the dire necessity of war, augmented the 
already great dissatisfaction of l^ew England; because 
they affected her commercial interests, and thereby 
touched her in by the most sensitive portion of her 
frame. She cried aloud for war! She cried, down with 
all your embargo and non-intercourse laws, and up with 
the flag of armed resistance! Impatient at the slow 
movements of the South, she taunted her with cowardice, 
and courteously as well as elegantly declared, that the 
South could not be "kicked into a war with England." 
But she was mistaken; she did not fully comprehend 
the South; the South' is, perhaps, too easily "kicked 
into a war." It is certain, that the South in the persons 
of her two young, ardent, enthusiastic, and chivalrous rep- 
resentatives, Henry Clay, of Kentucky, and John C. Cal- 
houn, of South Carolina, responded to the loud, vehement 
war-cry of New England. Their eloquence shook the 
nation. The spirit of armed resistance was roused; and 
the war with Great Britain proclaimed. But, alas! this 
did not help the commerce of New England. The remedy 
proved worse than the evil. Her ravenous pockets, in- 
stead of being filled with gold and satisfied, became still 
more and more alive to the dreadful state of things, and, 
thereupon, she endeavored to "kick the South" out of the 
war with Great Britain. In this, the dark hour of her 
agony and distress, she suddenly discovered that war is, 
at best, a most unholy and unchristian thing; not to be 
entered on lightly, or without counting the cost. She also 
discovered, that, after all, the number of her seaman, im- 
pressed by the tyranny of Great Britain, had been greatly 
exaggerated (by whom?); and that consequently the 
cause of quarrel was far too small to justify so unholy and 
so unchristian, that is to say, so unprofitable a war. 
* Buchanan's Administration, p. 86, 



IS DAVIS A TRAITOR? 195 

In the dark hour of her distress, the glorious rights of 
the States came out, and showered down their radiance on 
all New England, like the stars at night. The sovereignty 
of her own beloved Massachusetts, indeed, then totally 
eclipsed the full moon of the once "glorious Union;" just 
as completely as if Massachusetts had been "the whole 
earth." I speak from the record; from that secret, silent 
record of the Hartford Convention, in which all the pro- 
found dissatisfaction of New England with the Union cul- 
minated; and into which her sons, in spite of all their 
prying curiosity, have no desia-e whatever to look. Mr. 
Webster, for example, in- his great debate with Mr. Hayne, 
of South Carolina, in 1830, solemnly declared that he had 
never read the proceedings of that famous Convention. 
No wonder! 

" Where ignorance is bliss, 'tis folly to be wise." 

"Events may prove," saj^s the Journal of the Hartford 
Convention, January 4th, 1815, "that the causes of our 
calamities are deep and permanent. They may be found 
to proceed, not merely from blindness of prejudice, pride 
of opinion, violence of party spirit, or the confusion of the 
times ; but they may be traced to implacable combinations of 
individuals, or of States, to monopolize poiver and office, and 
to trample loithout remorse \ipon the rights and interests of the 
commercial sections of the U^iion."* Now, if we only sub- 
stitute the term agricultural for commercial in the above 
passage; how admii'ably will it express the complaint of 
the South, which, for long years of endurance, was treated 
with such imperial scorn and implacable contempt by the 
States of New England! 
>y ^" When ever it slmll appear," continues the Journal, 
'"that these causes arc radical and permanent, a separation 
by equitable arrangement, xcill be preferable to ax alliance by 

CONSTRAINT, AMONG NOMINAL FRIENDS, BUT REAL ENEMIES, 
*Page 5. 



196 IS DAVIS A TRAITOR? 

INFLAMED BY MUTUAL HATRED AND JEALOUSIES, AND INVI- 
TING, BY INTESTINE DIVISIONS, CONTEMPT AND AGGRESSIONS 

FROM ABROAD."*/' Precisely thus, and not otherwise, rea- 
soned the South in 1861; and asked for "a separation by 
equitable arrangement," instead of " an alliance by con- 
trast" with "nominal friends, but real enemies, inflamed 
by mutual hatred and jealousies." But the great boon 
was contemi^tuously refused ; because the se,ntiment8 of 
New England had undergone a radical and total revolu- 
tion. The reason is, that those were the sentiments of 
New England in the minority, and these the sentiments 
of New England in the majority Holy indeed was her 
horror of "an alliance by constraint," when she was the 
party in danger of being constrained ; but no sooner had 
she acquired the power to constrain, than such an alliance 
appeai-ed altogether pure and just in her unselfish ej^esl 

The Journal of this Convention has much to say about 
"the constitutional compact;" and hence, if it had only 
been read by Mr. Webster, he must have been familiar 
with this mode of expression, which so seriously ofl'ended 
him in the resolutions of Mr. Calhoun in 1833, and called 
forth his fine burst of eloquence in defence of the rights of 
that " noun substantive," the Constitution. He must have 
discovered also, that in the opinion of Massachusetts in 
1815, the rights of sovereign States are at least as important 
as those of anj^ noun substantive in the language. For, in 
the words of that Convention, the pOAver of conscription is 
"not delegated to Congress by the Constitution, and the 
exercise of it would not be less dangerous to their liberties, than 

HOSTILE TO THE SOVEREIGNTY OP THE STATES."f 

"It must be the duty of the State to w^atch over the rights 
reserved, as of the United States to exercise the powers 
which were delegated.^ 

The Hartford Convention, towering in the strength of 
its State rights sentiments, continues thus: "That acts 

* Page 6. t Page 8. J Page 7. 



IS DAVIS A TRAITOR? 197 

of Congress in violation of the Constitution are absolute- 
ly void, is an undeniable position. It does not, however, 
consist with the respect from a Confederate State 
towards the General Government, to fly to open resistance 
upon every infraction of the Constitution. The mode and 
the energy of the opposition should always conform to 
the nature of the violation, the intention of the authors, 
the extent of the evil inflicted, the determination mani- 
fested to persist in it, and the danger of delay. But in 
eases of deliberate, dangerous, and palpable infractions 
of the Constitution, affecting the sovereignty of the 
State, and liberties of the people ; it is not only the right, 
but the duty, of such State to interpose its authority for their 
protection, in the manner best calculated to secure that end. 
When emergencies occur which are either beyond the 
reach of judicial tribunals, or too pressing to admit of 
delay incident to their forms. States, avhich have no 

COMMON UMPIRE, MUST BE THEIR OWN JUDGES, AND EXE- 
CUTE . THEIR OWN DECISIONS."* Now, if possiblc, this 
comes more directly and plainly to the point, than the 
Kesolutions of '98. It not only sets forth the gi-eat doc- 
trine, it sometimes employs the very language of those 
Resolutions. 

Having finished its work, and appointed commissioners 
to lay the complaints of New England before the Govern- 
ment of the United States, the Convention resolved, that 
"if -these should fail," it Avould be the duty of the New 
England States to hold another Convention at Boston, on 
the 3d Thursday of June, with such powers and instruc- 
tions as so momentous a crisis may require, f No such 
Convention ever assembled at Boston, or elsewhere; for, 
in the meantime, the great trouble had come to an end. 
How, or by what means? Mr. Webster, though he con- 
fesses ignorance as to the proceedings of the Hartford 
Convention, is nevertheless perfectly ready with an an- 

*Pp. 10-11. fR"2L 



198 IS DAVIS A TRAITOR? 

swer to this question. In his senatorial debate with Mr. 
Hayne, in 1830, he tells the world, that Massachusetts 
gave up all opposition as soon as the Supreme Court of the 
United States decided the laws of which she complained 
to be constitutional; thus showing her loyalty under the 
most severe and trying circumstances ! This was, perhaps, 
a thrust at South Carolina; who, as Mr. Webster sup- 
posed, stood far apart from Massachusetts in the heresy, 
that, in great and trying emergencies, "the States, who 
have no common umpire, are to be their own judges, and 
to execute their own decisions." How little he knew the 
history of his own State ! Hence, he could fondly imagine, 
that Massachusetts had always been willing and ready to 
bow to the Supreme Court as the common umpire between 
the States, and proudly pointed to her conduct in 1815, 
bending and gi-oaning under the burden of the laws, and 
yet loyally submitting to the high tribunal by whom it was 
fastened upon her shoulders ! The truth is, as we have 
just seen, that Massachusetts had resolved to take that 
very emergency into her own hands ; to he her oivn judge, 
and to execute her own decision. She cared indeed as little 
for the Supreme Court, in such an emergency, as she djid 
for the other Courts of the Union; whose decisions had 
been repeatedly treated with contempt, and resisted with 
impunity, by her very loyal citizens during the great 
trouble of the war. 

Why, -then, did Massachusetts submit at last? Why 
did so great a change come over the spirit of her dream? 
The answer is a very simple one. It is told in the printed 
proceedings of the Hartford Convention. The story is 
certainly not so well adapted to the purposes of poetry, or 
of oratory, as the fine fiction invented by Mr. Webster; 
but it has, at least, the homely merit of truth. ^Har- 
rison Gray Otis, T. H. Perkins, a"nd W. Sullivan, the 
commissioners appointed by the Convention to lay the 
'grievances of New England before the Government of the 



IS DAVIS A TRAITOR? 190 

United States, reported that they had declined to do so, 
%ecause they found, on their arrival at Washington, that peace 
Jiad been cohdluctea?' ^ idaJt wa^'i no secret of the suhmis- 
"sTon of Massaciiusetts. The war Avith Great Britain was 
ar'aif^i'37'111^''ginhafg6^ would, of 

course, no longer vex her righteous soul; she could unfurl 
t ne^^^^soi her eomuieree to every breeze, and bring iu 
itarvestsof gold froia every quarter of the globc.^^ That 
was the secret of her great-hearted loyalty and submission. 
She no longer had any thing to submit to ! 

Sidney Smith complains of "exegesis," that it spoils so 
many fine sermons; not allowing the preacher to ramble 
iu his rhetoric, or to flourish at random, without regard 
to the real sense of his text. The same complaint may be 
urged against the simple truth of history. How many 
splendid orations, and grand soaring flights of rhetoric, 
will it not spoil for the people of IS'ew England! How 
many self-flattering and glorious illusions will it not dispel ! 

"That their object was," said Mr. John Quincy Adams, 
"and had been for several years, a dissolution of the 
Union, and the establishment of a separate Confederation, \ 
he knew from unequivocal evidence, although not prova- ■. 
ble in a court of law; and that in case of a civil war, the 
aid of Great Britain to effect that purjiose would bo 
assuredly resorted to, as it would be indispensably neces- 
sary to their design." f 

This design, says Mr. Adams, he had communicated to 
Mr. Jeff'erson, in 1809. Again, while President of the 
United States, Mr. Adams said: "That project, I repeat, 
had gone to the length of fixing upon a militarj^ leader 
for its execution ; and although the circumstances of the 
times never admitted of its execution, nor even of its full 
development, I had no doubt in 1808 and 1809, and have 

* Proceedings of Hartford Convention, p. 33. 
t Letter of Dec. 30, 1828, in reply to Harrison Gray Otis and 
others. 



1- 



200 IS DAVIS A TRAITOR? 

no doubt at this time, that it is the key of all the great 
movements of the Federal Party in New England, [and 
that party was then in the ascendency in New England,] 
from that time forward till its final catastrophe in the 
Hartford Convention."* 

"It is but fair to observe," says Mr. Buchanan, "that 
these statements were denied by the parties implicated, 
but were still adhered to and again reaffirmed by Mr. 
Adams." f True, it is but fair that their denial should be 
known, and estimated at its true value. But who could 
expect any men to acknowledge their complicity in such 
a design ? If, in the dark hour of their country's trial, 
engaged in a war with the greatest nation upon earth, 
they could conceive the idea of deserting her standard, and 
even of invoking the aid and the arms of her powerful 
enemy to make their desertion good, is it to be supposed 
that, after the scheme had failed or blown over, they 
would have pleaded guilty to such a design? Nor is this 
all. What did they mean by appointing another Conven- 
tion to be held at Boston ? Did they mean nothing ? Or 
if they had any honorable design, — any design which need 
not shrink from the light of day, — why has it never been 
avowed by them? The truth is, if any one shall carefully 
examine the proceedings of the Hartford Convention, and 
the previous history of New England which culminated in 
that Convention, he can hardl}^ fail to perceive, that the 
positive testimony of John Quincy Adams, is most power- 
fully corroborated by circumstances. V Q|he conclusion of 
Mr. Buchanan a]jpcars perfectly true; "that this body 
[the Hartford Coiivciition] manifested their purpose to 
dissolve the Union, should Congress refuse to redress the 
grievances of which they complained."-. 

Four years before the date of the Hartford Convention, 
Mr. Josiah Quincy, an influential member of Congress 

t Letter of Dec. 30, 1828. in reply to H, Gray Otis and other. 
* Buchanan's Administration, p. 87. 



IS DAVIS A TRAITOR? 201 

from Massachusetts, publicly declared the right of seces- 
sion. The extract from his speech on the 14th Januarj^, 
1811, is hackne3'ed; hut it is, nevertheless, significant of 
what was then passing in the mind of Massachusetts. It 
is also exceedingly significant ; because it was uttered in 
opposition to the admission of Louisiana into the Union 
as a State. "If this bill passes," said he, "it is my delib- 
erate opinion that it is virtually a dissolution of the Union ; 
that it will free the States from their moral obligation 
and, as it will be the right of all, so it will be the duty of 
some, definitely to pre2:»are for separation, amicably if they ^ 
can, violentl}^ if they must." 'v^ Nay, upon the jnirchase of n^^ 
Louisiana in 1 803. the Leg islature of ]\ras.saehusetts passed 
the followmg resolution: '' Jusnlcrd, That the annexation 
ol Loulsiana""lo tlie tTnion, transcends the Constitutional 
power of the Government of the United States. It formed 
aECw" Confederacy to which the States united by the former 
comjyacf, urenoTEo^il to adhere. " Tlius, as wo have seen, 
Massachusetts from the foundation of the Federal Grovern- 
ment down to 1815, held the Constitution to be a compact 
between the States, and the Union to be a Confederacy. 
In her ordinance of ratification in 1788; in her reply to the 
Eesolutions of '98; in her own resolution of 1803-4; she. 
most distinctly announced this doctrine. Hence, it seems 
impossible to doubt the statement of John Quincy Adams,* 
that the Hartford Convention deduced the right of seces- 
sion from the fact, that the Constitution was a compact 
between the States of the Confederacy'-. This was a clearly 
legal inference. Eawle, Story, and Webster all admit it 
to be such. Thus the fathers, one and all, laid down the 
great premise or postulate of the doctrine of secession at 
the very foundation of the Union ; and the New England 
States, in 1815, deliberately drew the inference, and 
asserted the right of secession. Yet these States, in 1861, 
took the lead of all others in the fierceness and the bitter- 

* Letter of Dec. 30, 1828, to H. Gray Otis, &c. ' 

10* 



202 IS DAVIS A TRAITOR? 

ness of their denunciation of secession as treason and 
rebellion ! The first to assert for themselves, and yet the 
first to persecute in others, this great right! 

It is thus that Josiah Quincy, the Webster of 1815, as- 
serted the fundamental principle or postulate of secession : 
"Touching the general nature of that instrument called 
the Constitution of the United States, there is no obscu- 
rity; it has no fabled descent, like the palladium of ancient 
Troy, from the heavens. Its origin is not confused by 
the mists of time, or hidden by the darkness of past, un- 
explained ages; it is the fabric of our day. Some now liv- 
ing had a share in its construction; all of us stood by, and 
saw the rising edifice. There can be no doubt about its na- 
ture. It is a political compact." Is this the same Josiah 
Quincy, or was it his son, who, in 1861, made himself so 
, conspicuous by denouncing seces sion as treason ?yit is 
Sv certainly the same Josiah Quincy7~wIio7~ m iMl, was 
called to order in Congress for asserting the right of se- 
cession, an^TToted to be in order. "^JIow rapidl}^ the New 
England world turns upon its political axis! In 1815, as 
secession was the right of all, so it was the duty of some, 
of the States; and, in 1861, it was treason and rebellion! 

Did the South condemn Secession in 1815 ? 

The South, it has been repeatedly asserted, condemned 
the secession of 1815 as treason, and is, therefore, estopped 
from complaining of the same sentiment in 1861. "This," 
it is urged, " may be said to be res adjudkata. All parties 
are committed against the right of secession." 

Now, even if the facts were as alleged, still this would 
be a one-sided logic. For if the South, in 1815, con- 
demned secession, it was the secession which New Eng- 
land had approved; and if the North, in 1861, denounced 
secession, it was precisely th^ I'ight which the South had 
asserted. Hence, it is just as true, that all parties were 
committed for, as that all parties were compiitted against, 
tJie right pf secession. 



IS DAVIS A TRAITOR? 203 

If, as is supposed, the minority was, in both instances, 
in favor of the right of secession, and the majority op- 
posed to it; this would have been nothing very strange or 
wonderful It would only have illustrated the saying of 
Aristotle, which all history confirms, that "the weak 
ahvays desire w^hat is equal and just; but the powerful 
pay no regard to it." 

But the facts have not been accurately stated.\/lt is 
true, that the South, as well as other portions ortlTe" 
Union, vehemently condemned the Hartford Convention. 
ISTo Convoiilioii. <ir assenilily, was ever more odious to the 
great body of the people of the United States. But its 
^i^oc^tTtngs were tseeret; and, till the appearance of Mr. 
A^amS^-tette? orUec. 30th, 1828, its i^recise object or de- 
sigh was hot generally known. , It maj^ be doubted, indeed, 
if it was ever condemned by any portion of the South, on 
the simple ground, that it claimed for the New England 
States merely the right to secede from the Union, and to 
be let alone. It was, however, known to the South, that 
the New England States had insisted on a war with Great 
Britain in order to defend and secure the rights of their 
seamen. It was also known, that while the South was 
engaged in this war, the New England States not only 
failed to do their duty, but denounced the war they had 
instigated, and the government by which it was carried 
on. It is true that, by these proceedings, the wrath of 
the South was awakened, and that she denounced them 
as treason; because they gave "aid and comfort" to the 
enemy. From all that had preceded, how could the South 
know, indeed, but that the Hartford Convention had 
formed the dark design of appealing to arms against the 
Government of the United States, and of joining Great 
Britain in the war against the people of this country ? 

Even if the South had known, that New England mere- 
ly designed, in 1815, to secede from the Union; still her 
indignation would not have been without just cause. For, 



204 IS DAVIS A TRAITOR? 

having got the South into a war with Great Britain, was 
that the time for her to desert the standard of her coun- 
try, and leave the other States exposed to the full brunt 
of its fury? The clearest right may, indeed, be exercised 
in such a manner, and under such circumstances, as to 
render it odious. The right of secession has, no doubt, 
been made to appear treasonable, by its association with 
the Hartford Convention of 1815. 

Far otherwise was the conduct of the South. She held 
no secret Conventions. All her proceedings were as open 
as the day. The United States were at peace with all the 
world. It was under these circumstances, that the States 
of the South, each in its own Convention assembled, with- 
drew from the Union, and asked to be let alone. But the 
South was not permitted to enjoy the government of her 
choice. On the contrary, she was subjugated, impover- 
ished, and ruined, with the avowed design to bring her 
back into the Union ; and now that she is knocking at the 
door of the Union, she is not allowed to enter. What, 
then, is left to her sons and daughters but to weep over 
the inconsistency and wickedness of mankind; and, if pos- 
sible, to pray for their enemies? 

Thomas Jefferson on the Bight of Secession. 

Though Mr. Jefferson was not one of the architects of 
the Constitution ; yet has more stress been laid on his 
supposed opposition to the right of secession, than upon 
that of any other statesman of America; esi)ecially by 
foreign writers. We are gravely told, with the usual 
information of such writers, that "Mr. Jefferson was, m 
after life, the foremost champion of State's rights." * We 
are also informed, that "he would certainly have turned 
away with abhorrence from the consequences to which 
these [rights] have since been driven." f This last senti- 
ment is, perhaps, conformed to the general opinion at the 
North on the same subject. But is it true ? 

* History of United States, by J. M. Ludlow. f Ibid. 



IS DAVIS A TRAITOR? 205 

It is certain, in the first place, that Mr, Jefferson him- 
self deduced the right of nullification from the doctrine of 
State-rights; not "in after life," but in 1799, before he was 
President of the United States. Mr. Everett, I am aware, 
insinuates that Mr. Jefferson never favored the doctrine 
of nullification. "Such, in brief," says he, "was the main 
l^urport of the Virginia and Kentucky resolutions." The 
sort of interposition indeed was left in studied obscurity. 
Not a word was droj^ped of secession from the Union. 
Mr. Nicholas' resolution in 1799 hinted at "nullification" 
as the appropriate remedy for an unconstitutional law, 
but what was meant by the ill-sounding word was not 
explained."* Now this statement is of a piece with the 
main substance of that grand swelling oration of the great 
Massat-husetts declaimer. It is utterly devoid of truth. 

In the first place, Mr. Jefferson himself in his correspon- 
dence, replied to the enquiry of the son of Mr. Nicholas, 
that his father was not the author of the resolutions in 
question. Mr. Jefferson says: "I drew and delivered 
them to him."f 

Nor is this all. "Two copies of these resolutions," says 
the editor of Mr. Jefferson's works, "are preserved among 
the manuscripts of the author, both in his own hand- 
writing. One is a rough draft, and the other very neatly 
and carefully prepared. The probability is, that they are 
the original of the "Kentucky Eesolutions on the same 
subject." J Let us see, then, the very language of these 
Eesolutions, and the manner in which they " hinted at nul- 
lification." 

The first resolution is in these words : " Resolved, That 
the several States composing the United States of Amer- 
ica, are not united on the principle of unlimited sub- 
mission of their general government; but that, by a 
compact under the style and title of the Constitution 

* Rebellion Record, Vol. 1, p. 20. 

*.Jefferson's Works, Vol. vii. p. 229. J Ibid Vol. ix, p. 4G4. 



266 IS DAVIS A TRAITOR? 

of the "United States, and of amendments thereto, they 
constitute a general government for special purposes; 
and that whensoever the general government assumes 
undelegated j)owers its acts are unauthoritative, void, and 
of no force, that to this compact each State acceded as a State, 
and is an integral party, its co-States forriiijig, as to itself, the 
other party ; that the government created by this compact was 
not made the exclusive or final judge of the extent of the powers 
delegated to itself; since that would have made its discretion, not 
the Constitution, the measure of its powers; but that, as in 

ALL cases of compact AMONG POWERS HAVING NO COMMON 
JUDGE, EACH PARTY HAS AN EQUAL RIGHT TO JUDGE FOR 
ITSELF, AS WELL OF INFRACTIONS AS OF THE MODE AND MEAS- 
URE OF REDRESS."* So much for the postulate. 

The conclusion is in these words: Resolved, That 

where powers are assumed which have not been delegated, 
a nullification of the act is the rightful remedy; that 
every State has a natural right in cases not within the 
compact, [casus non foederis,'] to nullify of their own 
authority all assumptions of power by others within their 
limits; that without this right, they w^ould be under the 
dominion, absolute and unlimited, of whosoever might 
exercise this right of judgment for them; that neverthe- 
less, this commonwealth, from motives of regard and 
respect for its co-States, has wished to communicate with 
them on the subject; that with them alone it is proper to 
communicate, they alone being the parties to judge in the 
last resort of the powers exercised under it. Congress being 

NOT A PARTY, BUT MERELY THE CREATURE OF THE COMPACT, 
AND SUBJECT AS TO ITS ASSUMPTIONS OF POWER TO THE FINAL 
JUDGMENT OF THOSE BY WHOM, AND FOR WHOSE USE ITSELF 
AND ITS POWERS WERE ALL CREATED AND MODIFIED," &C. 

Such is the language of Thomas Jefferson! Is it merely a 
modest "hint at nullification?" 

Some alterations were made in the resolutions, as penned 

*. Jefferson's Works, Vol. ix. p. 464-5. 



IS DAVIS A TRAITOR? 207 

by Mr. Jefferson, before they were passed by the Legisla- 
ture of Kentucky. But the first resolution above given 
was not altered at all; it was passed precisely as it came 
from the pen of Mr. Jefferson, with only one dissentient vote! 
In the resolutions as jiassed by the State of Kentucky, we 
find these words: "That the principle and construction 
contended for by sundry of the State Legislatures, that the 
General Government is the exclusive judge of the extent 
of the powers delegated to it, stop nothing short of despot- 
ism — since the discretion of those who administer the gov- 
ernment, and not the Constitutioi^ would be the measure 
of their powers: That the several States who formed that 
instrument being sovereign and independent, have the unques- 
tionable right to judge of the infraction; and, that a nulli- 
fication BY THOSE SOVEREIGNTIES, OF ALL UNAUTHORIZED 
acts DONE UNDER COLOR OP THAT INSTRUMENT IS THE RIGHT- 
FUL REMEDY."* 

Such is the language, which Mr. Evei-ett so very modestly 
calls a "hint at nullification " I 

He must be a dull logician, indeed, or a partial one, who 
does not see, that both nullification and secession flow 
from the great fundamental doctrine of the Yirginia and 
the Kentucky Eesolutions. If, according to that doc- 
trine, stated in the very words of Massachusetts, "the 
States, who have no common umpire, are to be their own 
judges, and to execute their own decisions;" then most 
assuredly they may pronounce in favor of either nullifica- 
tion or secession. Any State may, it is true, bring re- 
proach on this right of sovereignty, by the manner in 
which it is exercisedb^J" have, indeed, al ways doubted 
whether nullification'was a wise,"'6r "judiciousj exercise of 
tTTr ig-M 6t btaT|tJ10 ,V.^e i i n ^yr' r rrr ccr tam, that Mr._ 
Webster, as w ell as many others, has jioiuted out so many 
InconvcnTenccs, not to saj' absurdities, connected wi tji tlie 
(Cict of nullification; that the right has usually been rejec- 

*jei.lio.t:s Debates, Vol. iv., p. 571. " 



208 IS DAVIS A TRAITOR? 

ted "vvith contempt. But the exercise of a rigM is one 
thingpanci the existence of that right is anotheiv>A man 
may, in his own affairs, judge unwisely; but «foes that 
prove that he had no right to judge for himself? In like 
manner, it does not follow, that a sovereign State has no 
right to be her own judge; because she may judge un- 
wisely. It is, then, false reasoning to conclude that a 
State has no right to nullify, because the act of nullifica- 
tion is full of inconveniences, or even absurdities. Yet 
this kind of sophistry is precisely the amount of all the 
logic, which has been urged against nullification. If a 
man, who has the righ#to judge for himself in his own 
business, makes an unwise decision; shall the right, there- 
fore, be taken from him, and given to another? Shall his 
decision be declared null and void; and the decision of 
some other person substituted in its place ?^ Nothing could 
be more unjust and despotic. Nor will any sovereign State 
submit to be treated in a similar manner by any unauth- 
orized power on earth. The act of nullification has, no 
doubt, brought reproach on the doctrine of State-rights, 
and especially on the right of secession ; but then this has 
been just because men have failed to think accurately and 
profoundly on the subject. They have confounded the 
propriety, or judiciousness of an act, with the right of 
the party to do the act, than which a worse solicism could 
hardly be perpetrated. 

Nullification is, however, but indirectly connected with 
secession. This right flows, as we have seen, directly 
from the doctrine of Mr. Jefferson^ "that as in all other 
cases of compact, among parties having no common judge, 
each party has an equal right to judge for itself, as well 
of infractions as of the mode and measure of redress." 
To say that a State has the right to judge of infractions 
of the compact of the Constitution by the Federal Gov- 
ernment, and also of the mode and measure of redress; 
and, at the same time, that it has no right to decide upon 



18 DAVIS A TRAITOR? 209 

secession as the proper vemedy; is, it seems to me, sim])ly 
a contradiction in terms. Now tlie question is, Avas Mr. 
Jefterson guilt}^ of this act of glaring inconsistency, or 
self-contradiction ? 

He "would have turned away with abhorrence," it is 
said, "from the consequences" which have been deduced 
from the doctrine of State rights. In this bold assertion, 
the writer had special reference to the right of secession; 
which his historj-jof the United States, as it is called, was 
written to demolish. Hundreds have, indeed, attempted 
to throw the great Aveight of Mr. Jefferson's authority in 
the scale against the right of secession, by means of the 
following extract from his works: "If to rid ourselves of 
the present rule of Massachusetts and Connecticut, we 
break the Union, will the evil stop there? Suppose the 
New England States alone cut off, will our nature be 
changed ? Are we not men still to the South of that, and 
with all the passions of men ! Immediately, we shall see 
a Pennsylvania and a Virginia party arise in the residuary 
confederacy. What a game too will the one party have 
in their hands, by eternally threatening the other that 
unless they do so and so, they will join their Northern 
neighbors. If wc reduce our Union to Virginia and North 
Carolina, immediately the conflict will be established be- 
tween the representatives of these two States, and they 
will end b}^ breaking into their separate units." 

Now this partial extract, Avhich has gone the rounds of 
the civilized world, gives an utterly false view of Mr. Jef- 
ferson's opinion. The context to the above passage, 
which is sometimes permitted to accompany it, shows 
that Mr. Jefferson really believed in the right of secession, 
and only argued against the intemperate and too hasty 
exercise of that right. "If," saj-s he, in the sentence im- 
mediatel}^ preceding the above extract, "on the tempora- 
ry superiority of one part}', the other is to resort to a 
scission of the Union, no federal government can exist." 



210 IS DAVIS A TRAITOR? 

How perfectly ti*ue! If, for so trifling a cause, any 
union of States should be dissolved, it would soon be re- 
solved into its original units. The union would not long 
exist, and it would not deserve to exist, if its members 
were such fools as to resort to the right of secession "on 
the temjDorary success" of every party therein. But to 
argue, as Mr. Jefferson does, against the too hasty and 
intemj)erate exercise of the right, is to acknowledge the 
existence of the right itself 

In the Declaration of Independence, Mr. Jefferson said, 
"that long established governments should not be changed 
for light and transient causes^ Nor, however clear the 
constitutional right, would he have dissolved the Union 
for such causes. But does he say, that he would not ad- 
vocate a scission of the Union for any cause whatever? 
That in no event whatever, he would resort to the right 
of secession? There is no such doctrine in his writings; 
no such glaring self-contradiction in any portion of his 
works. 

On the contrary, in consultation as to what the Ken- 
tucky Eesolutions of '98 and '99 should contain, he wished 
the following sentiments to be incorporated therein : "Ex- 
pressing in affectionate and conciliatory language our warm 
attachment to the Union with our sister States, and to 
the instrument and principles by which we are united; 

THAT WE ARE WILLING TO SACRIFICE TO THIS EVERY THING 
BUT THE RIGHTS OF SELF-GOVERNMENT IN THOSE IMPORTANT 
POINTS WHICH WE HAVE NEVER YIELDED, AND IN WHICH 
ALONE WE SEE LIBERTY, SAFETY AND HAPPINESS."* Is it 

not perfectly obvious, from this passage, that Mr. 
Jefferson had not been so dazzled b}' the glories of the 
new Union, as to forget the immortal principles of the 
Declaration of Independence ? 

Devoted to the Union, but still adhering to the great 
principles of 1776, he immediately adds, that we are "not 

* Jefferson's Works, Vol. iv, p. 305-6. 



IS DAVIS A TRAITOR? 211 

at all disposed to make every measi;re of error or of 
Avrong, a cause of scission." Could language more clear- 
ly, or more necessarily imply, that there are measures of 
error, or of wrong, which he would make a ground of 
scission, or secession from the Union? Or could any 
doctrine be more clearly asserted, than is the opinion of 
Mr. Jefferson, that the States, and the States alone, are to 
be the judges whether the measure of error, or of wrong, 
which justifies her secession, has been filled or otherwise? 

The Political Creed of the State-Rights Party. 

The Virginia Eesolutions of '98 and the Kentucky Res- 
olutions of '98 and '99, the former from the pen of "the 
father of the Constitution," and the latter from the pen 
of the author of the Declaration of Independence; consti- 
tuted, for at least forty years; the political creed of the 
great State-"Rights party. v/Thej^ were, as eveiy one 
knows, the nianitrstors on which Thomas Jefterson went 
before the people, in 1800, us caiididute fur the Presidency 
of the United States? They wore also inscribed on the 
banners of the party by which Madison, and Monroe, and 
Jackson, and other candidates, were supported for the 
isame high office. Were they, then, at that time, deemed 
treasonable by the people, or by their leaders? Let us 
glance at the record and see. 

In 1800, Mr. Jefferson beat his opponent, John Adams, 
then President of the United States, by a majority of 
eight votes in the electoral college, or by a vote of 73 to 65. 

In 1804, Mr. Jefferson, the champion of State-Rights, 
beat his opponent by the overwhelming majority of 162 
votes to 14. In the JSTox'thern States alone, Mr. Jefferson 
received 85 votes, and his opponent only 9. 

In 1808, Mr. Madison beat his opponent by a vote of 
122 to 47; and, in spite of the dissatisfaction of the New 
England States, he received from the whole North a ma- 
jority of 50 to 39 votes. 



212 IS DAVIS A TRAITOR? 

In 1812, he defeated DeWitt Clinton, a distinguished 
citizen, and formerly Governor of New York, by a major- 
ity of 128 to 89; receiving in the Northern States only 
40 votes to his rival's 80. 

In 1816, James Monroe of Virginia, received 183 votes, 
and his opj)onent only 34; and more than one-half of 
these 183 votes were given by Northern States. 

In 1820, Mr. Monroe was elected over John Quincy 
Adams, of Massachusetts, by the majority of 231 votes to 
13, Two other candidates were in the field at the same 
time, Crawford and Jackson; both of whom together 
received only 11 votes. 

This vote, however, can hardly be regarded as a test of 
the popularity of thp doctrine of State-Eights ; since this 
was, in 1820, professed by all the candidates for the Presi- 
dency. Yet this fact shows, that the opposite party had 
been so often and so completely defeated, that it refused 
to nominate a candidate. >C ^ut James Monroe , the succes- 
sor of Jeiferson and Madison, and well known as an ar- 
dent advocate of the doctrine of State sovereignty, swept 
the whole country, and carried every thing before him 
like a tornadoy''^enceforth all aspirants for the Presiden- 
cy bowed down to that great symbol of political truth 
and power, the Virginia Eesolutions of '98. Even Mr. 
Webster approached them with evident signs of awe, and 
never ventured to speak of them otherwise than in terms 
of marked respect, if not of veneration. No living soul 
dared to breath the suspicion that any one of their doc- 
trines was treasonable. 

How, then, did it happen, that those doctrines were 
afjterward arraigned by Story and Webster as at war with 
the Constitution of the United States? How did it hap- 
pen, that, without the most distant allusion to the Vir- 
ginia Eesolutions, under which so many battles had been 
fought and so many victories won, the great orator of 
New England had the audacity to declare, that all the 



IS DAVIS A TRAITOR? 213 

fiithers of the Constitution, that all the publications of 
friends and foes, denied the Constitution to be a compact 
between sovereign States? The foregoing brief sketch 
of the progress of opinion in regard to the nature of the 
Constitution would be incomplete without an answer to 
this question; without some notice of the causes by which 
so marvellous a revolution was produced. 

The Decline of the Doctrine of the Sovereignty of the States, 
and its Causes. 

Mr. Dane says: "That for forty years one great party 
has received the Constitution, as a federative compact 
among the States, and the other part}', not as such a com- 
pact, but in the main national and popular."* Now, as 
we have seen in this chapter, the above statement is not 
true. The federal party itself, with Hamilton at its head, 
admitted the Constitution to be a comjjact between the 
States. The State of Massachusetts, the great leading 
State of that party, always held the Constitution to be 
such a compact previous to the year 1830. She held this 
doctrine, as j^just seen, in 1788, in 1799, in 1803; and 
she continued to hold it until, in 1815, it culminated in the 
avowed right of secession. There is, then, no triith in the 
statement, that for forty years one great party denied the 
Constitution to be a federative compact among the States. 
One great party, it is true, showed a strong disposition to 
deny the sovereignty of the States in the Union, and to 
assert the sovereignty of the Federal Government. But 
the doctrine imputed to it was not one of its heresies. 

Neither Mr. Dane, nor Judge Story who quotes his 
words, is pleased to inform the reader that "the great 
party," which is asserted to have sanctioned their own 
heresy, was swept from existence by the other great 
party. It sank so low, in fact, after the war of 1812, and 
became so odious, that none was so humble* as to do it 
reverence, 

* Quoted in Story's Com. vol. 1, p. 288, note. 



214 IS DAVIS A TRAITOR? 

Nor do they inform the reader, that the great leaders 
of this very party in New England, became in 1815, when 
in distress, the warmest of all existing advocates for the 
rights and the sovereignty of individual States. They do 
not even drop a hint, that those leaders, those staunch 
advocates of the sovereignty of the Federal Government, 
were the first to insist on the right of secession ; a fact 
which would have detracted very much from the weight 
of their authority against the doctrine of "a federative 
comjjact among States," even if they had ever rejected 
that doctrine. 

History acquits the old federal party of the monstrous 
heresy imputed to it. Having been chief agents them- 
selves in framing "the federative compact " for the States; 
and having anxiously watched the States as, one after 
another, each acceded to that compact; such a heresy, such 
a perversion of the facts falling under their own observa- 
tion, would have been utterly beyond their power. How, 
then, and why, did the heresy in question raise its head in 
the Northern States? 

This question is easity answered. 

1. The doctrine of a compact is attended with one 
great inconvenience; the inconvenience, namely, that if it 
be violated by one of the parties, the other parties are 
absolved from its obligations. This great inconvenience is 
set forth by Dr. Paley; to whose chapter on the subject, in 
his Political Philosoph}^, Mr. Justice Story refers. Now 
this doctrine makes the stability of the Federal Compact 
depend on the good faith of all the parties ; which seemed 
quite too frail a foundation for the Union. Hence, the 
doctrine of a federative compact, which, for fort}'^ years 
had been held by both the great parties of the United 
States, was explained away, and the will of the strongest 
substituted in its place. According to his theory, then, the 
Union rested", not on the justice of the* parties, but on the 
despotic power of the dominant faction. He thus placed 



IS DAVIS A TRAITOR? 215 

the Union, by his construction, on Avhat he conceived to 
be a more solid foundation "than a federative compact 
between the States." But this, as we have seen, was to 
subvert the foundation laid by the fathers of the Union; 
and, in order to make good his theory, he had to falsify 
the whole political history of the United States during the 
first forty years of the existence of the new Union ; espe- 
cially the views and the authority of its founders. 

2. The right of secession had never been seriously con- 
sidered by any party, so long as the Union was prosperous 
and happy. But, during the period from 1803 to 1815, the 
great leaders of New England, regarding their section as 
grievously oppressed in the Union, revolved the great 
theme in mind, and. for the first time in the history of 
j)arties, deliberately asserted the right of secession. In 
view of this alarming event, it became still more impor- 
tant, in the opinion of Mr. Justice Story and other con- 
structionists, to deny the doctrine of a federative compact, 
from which, as he saw and admitted, so frightful a conse- 
quence necessarily resulted. 

3. This denial became the more indispensable, in Judge 
Story's opinion; because Mr. William Eawle had, in 1825, 
asserted the right of secession in his work in the Consti- 
tution. Mr. Justice Story alludes to the opinion of Mr. 
Eawle, and, deploring it, he bent all his energies and eru- 
dition to demolish the doctrine of a federative compact, 
from which that right necessarily^ results. Thus, accord- 
ing to his theor}', the Union was to be hooped with bands 
of iron, and not trusted to the mutual sympathy and good- 
faith of its members. 

4. But, however great and commanding the influence 
of Stoiy's opinion, or view of the Constitution, it would 
have been comparatively feeble ; if it had not been aided 
by public events. South Carolina, feeling herself and some 
of her sister States grievously oppressed in the Union, by 
the tariffs of 182'4 and 1828; planted herself on the great 



216 IS DAVIS A TRAITOR? 

platform of State-Eights, and nullified the act of Congress. 

The indignation of the North was aroused. Nullification, 

it was said, led directly to secession, or a dissolution of the 

Union. The New England States, which had only fifteen 

years before advocated the right of secession, now led the 

fierce crusade against its advocates. John C. Calhoun, 

the great nullifier, was the mark of their fury.S^t was in 

I this contest, as every one knows, that the gresa Orator of 

I New England, Mr. Webster, put forth "the greatest intel- 

[ lectual effort of his life," if not of the human mind. The 

whole North was electrified bj^ his eloquence; and became 

intoxicated with his fictions. ^ | 

Much has been said about the Northern and the South- 
ern theories of the Constitution. The true word is, how- 
ever, the theories of the majority and of the minority. 
For the Southern theory, as it is called, originated in New 
England; and, passing from minority to minority, found a 
permanent resting place in the South. Yet it may, with 
truth, be called the Southern theory; since the South has 
always been in the minoi'ity in the new Union. 

Mr. Webster lived to pronounce a splendid eulogy -on 
the virtues, the patriotism, and the genius of John C. Cal- 
houn; with whom he had so long served in the Senate of 
the United States. ;^ut the successors of Mr. Webster 
have, for more than eiglitcen long months, held the bosom 
/Trlend and the peer of John C. Calhoun in prison at For- 
tress Monroe, as if he were already a convicted felon and 
fr'altor. Yet is it, as we have seen, his only crime, that he 
sat at the feet of Thomas Jefferson, "the immortal author 
of the Declaration of Indej)endence;" and there learned 
the right of secession. Shall the people, then, who sang 
loud hozannas to the great master, follow the equally 
great disciple with the cry oT crucify him, crucify himf Or 
, shall it be said, that they voted the Presidency for the 

I one, and a prison for the other? 
^^ 



CHAPTEE XIX. 



The Causes of Secession. 



In the preceding chapters, the Constitutional right of 
secession has, it seems to me, been demonstrated. If so, 
then in the eye of reason, the Southern States are acquit- 
ted of every offence against the Constitution, or the 
supreme law of the land. But, however clear a legal or 
constitutional right, it may not be always proper to exer- 
cise it. If the Southern States exercised the right of 
secession merely because they possessed that right, or 
merely because they were beaten at an election, or for any 
such "light and transient cause;" then they committed a 
great wrong. Then, although they violated no law of the 
land, they committed a great and grievous wrong against 
the moral law of the world, by a capricious exercise of 
their sovereign right and power. Hence, the vindication 
of the Southern States in the forum of conscience, as well as 
in that of the law, demands an exposition of the causes of 
secession. It would require a volume to do justice to this 
subject; and yet, at present, a brief sketch is all tliat can 
be attempted. 

The Balance of Power. 

From the foundation of the American Union to the pres- 
ent day, the provision of its Constitution for the frac- 
tional representation of slaves, has been more talked about, 
and less understood, than any other clause of that "sacred 
instrument." One would suppose, that if any one really 
11 



218 IS DAVIS A TRAITOR? 

desired to ascertain the reason or design of this "singular 
provision/' as it is called, he would look into the debates 
of the Convention by which it was inserted in the Consti- 
tution. In these debates, as reported in "The Madison 
Papers," the reason or design of the fathers in the enact- 
ment of that clause is as clear as the noonday sun. Yet, 
in all that has been written by the North on the subject, 
there is not even a glimmering of light as to that reason 
or design. Men make books, says old Burton, as apothe- 
caries make medicines, by pouring them out of one bottle 
into another. This has most emphatically been the way 
in which men have made books on "the American Ques- 
tion;" and, in the case before us, the bottles were originally 
filled, not at the pure fountains of historic truth, but from 
the turbid streams of ignorance, falsehood, and misrepre- 
sentation. Yet, for three quarters of a century, has all 
this vile stuff been continually poured out of one book into 
another. Accordingly, we find it in a hundred books on 
both sides of the Atlantic; uttered with just as much con- 
fidence as if the authoi-s had some knowledge on the sub- 
ject. 

Thus are we gravely told, and witji great confidence, 
that "the weakest point in the Constitution lies elsewhere. 
It lies in that truckling to the slave-power which is ob- 
vious in it It lies especially in that singular provision for 

what is termed 'black' or 'slave' representation, where- 
by alone, amongst all species of property, that in human 
flesh is made a source of political power."* Now, if any 
thing in history is certain, it is that, after a protracted 
debate, the Convention of 1787 agreed that population, 
and population alone, should constitute the basis of repre- 
sentation. The slaves were not represented at all as prop- 
erty. This is evident, not only from the debates of the 
Convention of 1787, but from the very face of the Con- 
stitution itself "Eepresentatives," says that document, 

* History, by T. M. Ludlow, pp. 44t6. 



IS DAVIS A TRAITOR? 219 

''shall be apportioned among the several States which 
may be included within this Union, according to their 
respective numbers, (not one word is said about property), 
which shall be determined by adding to the whole num- 
ber of free persons, including those bound to service for a 
term of years, and excluding Indians not taxed, three- 
fifths of all other persons." Thus, in this very clause, the 
slaves are called "persons," and are to be represented as 
such, not as property. Hence, when Mr. Greely, in his 
"American Conflict," wishes to prove that the Constitution 
regards slaves as "persons," he quotes the clause in ques- 
tion. Nay, Mr. Ludlow himself, when it suits his purjDOse, 
can recognize the truth, that the Constitution "never 
speaks of the slave as a property, but as a person."* If, 
indeed, slaves had not been regarded as persons, they 
would not have been admitted into the basis of represen- 
tation at all. 

Now, did the North truckle to the South, in conceding 
that slaves are "persons?" Mr. Paterson, of New Jersey, 
and some other Northern members, endeavored to ex- 
clude slaves from tRe basis of representation on the ground 
that they were "property;" but Mr. Butler and Mr. C. C. 
Pinckney, both of South Carolina, insisted that they were 
"persons," that they were a portion of the laboring and 
productive "population" of the South; and as such, should 
be included in the basis of representation on a footing of 
equality with other "inhabitants." The Convention de- 
cided that they were "persons." Was this decision cor- 
rect? Or was it, on the contrary, a mean "truckling to 
the slave power?" 

In the declamations on this subject, it is usually taken 
for granted by Northern writers, as well as by Mr. Lud- 
low, tliat free citizens or voters alone are included in the 
basis of representation for the North, while three-fifths 
df the slaves are embraced in it for the South. Hence, 

♦Page 61. ' ' " [ ' 



220 IS DAVIS A TRAITOR? 

this is vehemently denounced as a "singular provision," 
as a "strange anomaly," as a most undue advantage to 
the South. But the fact is not so. The assumption is 
utterly false. By the decision of the Convention, and by 
the very terms of the Constitution, "the whole number of 
free persons," whether men, women, children, or paupers, 
are included in the basis of representation. All "per- 
sons," of every age, color, and sex, are included in that 
basis. Hence, Mr. Ludlow is mistaken in calling the 
clause in question, "the provision" for "black" represen- 
tation ? The blacks, as such, were included in the general 
provision, and ranked as equal to the whites. In like 
manner. Professor Cairnes errs in saying the clause under 
consideration "is known as the three-fifths vote."*- No such 
thing as a "three-fifths vote" is known to the Constitu- 
tion of the United States; and the name is the coinage of 
ignorance. The three-fifths clause has nothing to do with 
votes or voting. No slave could cast the three-fifths, or 
any fraction, of a vote. The free blacks were, in most 
cases, denied the exercise of the elective franchise. It 
was in counting the number, not of those who should vote, 
but only of those who should make up the basis of repre- 
sentation that five slaves were to be reckoned equal to 
three white persons, or to three free negroes. 

Now, why was this ? Had the Convention any rule of 
vulgar fractions, by which a slave was shown to be only 
the three-fifths of a person? And if they had, did not the 
clause in question result from a mathematical calculation, 
rather than from a "truckling to the slave power?" or, 
if that was treated as a question of vulgar fractions, why 
did the Convention stop there ? Why not raise other 
questions of the same kind ? Why not consider the prob- 
lem, if a full-grown slave is only the three-fifths of a per- 
son, what fraction of a person is the infant of a day old, 
before the power of thought, or of local motion, has even 

*The Slave Power, chap. vi. 



IS DAVIS A TRAITOR? 221 

begun to infold itself in him or her? The truth is, that 
the Convention of 1787 indulged in no such contemptible 
trifling with the great practical questions demanding a 
solution. 

The States were exceedingly jealous of "the sovereign- 
ty, freedom, and independence," which they had express- 
ly retained under the Articles of Confederation. The 
Federal Government claimed, on the other hand, an aug- 
mentation of its i^owers; a claim eloquently urged by the 
tongues and pens of many of the ablest men in America. 
Hence arose the great conflict betAveen the States and the 
central Power; which, from that day to this, has agitated 
the minds of the Anglo-Americans. In approaching this 
conflict, the Convention first determined, in outline, the 
form of the General Government. It was readily agreed, 
that it should be a Eebublic, with a Legislature consisting 
of two branches, a Senate and House of Eepresentatives, 
a Judiciary, and an Executive. The next question was, 
what powers shall the States delegate to this General 
Government, this grand Eepublic? After debating this 
question for some time, the Convention discovered that it 
had begun at the wrong end. None of the parties were 
willing to say with what powers the new Government 
should be invested, until it was ascertained what share 
they were to have in the exercise of those powers. 
Hence the Convention found it necessary to reti'ace its 
steps, and begin with the question of the distribution of 
power among the various members of the Union. In 
this contest for power, each and every party, of course, 
claimed "the lion's share." But each and every party 
fcould not have " the lion's RhnTe."s/7fynce the two mem- 
j)rable quarrels or controversies of the Convention of 
L787; the one b etAveen "the large and the puiall StateSjJ' 
ind. the other latwe^ii -tlie ]S[Qi'th.. and the South." 
[uch is known alxiut the first of these quarrels; but the 
history of the last yet remains to be written. Its very 



)r 



222 IS DAVIS A TRAITOR? 

first chapter is still enveloped in the most profound ob- 
scurity. I speak advisedly, and with the proofs on all 
sides around me, when I say that the Americans them- 
selves have not studied this first chapter in the history of 
the great quarrel between "the North and the South." 
Let us look into it, then, and see what it teaches. 

In order to adjust and settle the two quarrels above 
mentioned, Mr. Madison laid down the general principle, 
that "wherever there is danger of attack, there should be 
a constitutional power of defence." No principle could 
have been more reasonable or just; since the object of all 
government is to protect the weak, or those most exposed 
to danger, against the aggressions of the powerful. The 
Convention, without difiiculty, agreed to the above prin- 
ciple, when only stated in general terms; but, as usual in 
such cases, a great difference of opinion arose in regard to 
the application of the principle. 

The small States, for example, fearing lest the large 
States should "annex" them, or swallow them up in some 
other way, refused to increase their power in the Union. 
They insisted, that each State, whether small or great, 
should have precisely the same power in both branches of 
Congress. This would have placed all the powers of the 
Fedetal Legislature in the hands of the small States. 
They were willing, nay, they were eager to possess them 
all; just as if they had not the least fear that they could 
ever be tempted to do the least injury to the large States. 
But the large States, not having this perfect confidence in 
the justice of their little neighbors, refused to entrust them 
with the supreme control and destiny of the Union. 
Hence they refused "the lion's share" to the small States. 
They contended, however, for this share for themselves. 
They contended that each State should, in each branch of 
the Federal Legislature, have a power exactly propor- 
tioned to its size or population; an arrangement which 
would have given the absolute control of the whole gov- 



IS DAVIS A TRAITOR? 223 

ernment of the thirteen States to three States alone. Yet 
those three States, — (Massachusetts, Pennsylvania, and 
Virginia, — ) with a perfect unanimity and a burning zeal, 
contended for this supreme dominion in the new Union. 
The small States, till then equal in constitutional power 
with the large ones, resented this as a design to degrade 
and enslave them. This contest was the most obstinate 
and violent one of the Convention of 1787. "The truth 
is," said Alexander Hamilton, in regard to this very quar- 
rel, "it is a contest for power, not for libei-ty." Each 
party, in its eagerness to grasp the supreme power, 
neglected the rights and interests of the other. 

Np/This violent co ntest, whicli tlireutened to break up the 
nnnv^ptinn nnrl ]\]-i<.f all hopo of a '-more perfect Unionj^ 
was finally se ttled by one of ••the euniproniiscs of the Con- 
stitution." ft was agreed, that tlie States should retain / 
their equality in the Senate, each having two representa- 
tives in that bodv; and that tlu'V should be represented in 
the other branch of Congress in proportion to their popu- | 

Jations. Thus the small States controlled the Senate; and ] 
the large ones, the House of lu'presentatives. 'Hence ' 
neither part}' could oppress the other. As no law could 
be passed without the concurrence of both Houses of Con- 
gress; so it must obtain the consent of the small States in 
the one, and of the large States in the other. Each class 
of States held a check upon the power of the other. Thus, 
where "there was a danger of attack," there was, on both 
sides, given "a constitutional power of defence." This 
was, in deed as w^ell as in word, to "establish and ordain 
liberty." Hence the most violent contest of the Conven- 
tion of 1787 ceased to agitate the bosom of the new Union. 
This admirable arrangement was proposed by Oliver Ells- 
worth, of Connecticut, and recommended on the ground 
that, in a Eepublic, it is always necessary' to protect the 
minority against the tyranny of the majority. 

The same principles and policy governed the Conven- 



224 IS DAVIS A TRAITOR? 

tion in its attempt to adjust and settle the great antago- 
nism between the North and the South. Mr. Madison was 
so deeply impressed Avith the importance of arming each 
of these sections with a defensive power against the other, 
that he proposed "the numbers of free white inhabitants" 
as the basis of representation in one House of Congress, 
and the whole population, including blacks as well as 
whites, as the basis of representation in the other. 
This distribution of power would have given the North a 
majority in one branch of the Legislature, and the South 
a majority in the other. But the proposition failed. Mr. 
MadisoQ did not urge it, indeed, because, as iie said, it pre- 
sented a cause of quarrel which was but too apt to arise of 
itself 

After the States were made equal in the Senate, each 
having two representatives in that body, the North had 
the entire control of it. As there were eight Northern 
States, (Delaware was then considered a Northern State), 
and only five Southern States; so the North had a major- 
ity in the Senate of 16 to 10. Hence, if the South w^as to 
have any defensive power at all, it should have had a ma- 
jority of representatives in the other branch of Congress. 
Accordingly, Southern members insisted on the full rep- 
resentation of the whole population of the South, as well as 
of the North, in order that their section might have a 
majority in one branch of the common Legislature. The 
North, on the contrary, insisted that the slaves should be 
entirely excluded from the basis of representation ; which 
would have given that section a decided majority in both 
branches of Congress. Thus, while the South contended 
for a power of self-defence or protection; the North 
aimed at no less than absolute control and dominion. 
The South would not submit. The North and the South 
were then, as they afterward appeared ;to De Tocqueville, 
"more like hostile nations, than rival parties, under one 
government." The fierce contest 'for power between 



IS DAVIS A TRAITOR? 225 

them resulted in the compromise of the three-fifths clause 
of the Constitution. In proposing this clause, Mr. Wilson, 
of Pennsylvania, said it could not be justified on principle, 
whether property or population were regarded as the 
basis of representation, but that it was deemed "necessa- 
ry as a compromise" between the North and the South. 
As such it was seconded by Mr. C. C. Pinckney, of South 
Carolina, and as such it was adopted by the Convention. 
This clause was, then, a compromise, not between abstract 
metaphysical principles of government, but between the 
opposite and conflicting claims of- the two rival sections. 
Did the North, then, "truckle to the slave power"? It is 
certain, that she grasped at and gained a majority in both 
branches of the common Legislature. For, in spite of 
the clause in question, the North had a majority of 36 to 
29 in the House of Eepresentatives, as well as of 16 to 10 
in the Senate; a share which certainly ought to have sat- 
isfied any ordinary lion. 

But it is the fate of a democracy to be governed more by 
words than by ideas, more b}^ "telling cries" than by 
truth. The cry has always been that the slaves, who had 
no wills of their OAvn, Avere represented in Congress; and 
that this "singular provision," this "strange anomaly," 
had resulted from a base "truckling to the slave power." 
But for this provision, says Professor Cairnes, * there 
seemed to be nothing in the Constitution, "which was 
not calculated to give to numbers, wealth, and intelli- 
gence, their due share in the government of the country." 
Did the general clause, then, which places idiots, paupers, 
free negroes, and infants of all ages, in the basis of repre- 
sentation, provide for nothing but a representation of 
"the intelligence and wealth of the country?" The 
truth is, that none of these clauses were represented in 
Congress; they were merely considered in the difficult 
question of the distribution of power among the States 

*The Slave Power, p. 164. 
11* 



226 IS DAVIS A TRAITOR? 

and the Sections. The only persons really represented 
were the voters, who had the legal right to choose their 
own representatives. It was in this way, and in this way 
alone, that the Convention sought to secure a representa- 
tion of the "wealth and intelligence" of the country. 
But who cared for the truth? The telling cry, that 
slaves were represented in Congress, inflamed the pas- 
sions of the North, and served the purpose of demagogues 
infinitely better than a thousand truths. Hence the 
world has been filled with clamors about "the slave 
representation of the South." The deceivers arc, howev- 
er, careful to conceal the fact, that all classes of "persons," 
except the slaves, are reckoned at their full value in con- 
stituting the basis of representation. The women and 
children of the North alone, many of whom were born in 
foreign countries and had never been naturalized in 
America, have been the source of far greater political 
power, than that which has resulted from the whole pop- 
ulation of the South. Is it not much nearer to the truth, 
then, to say that the South has been governed by the 
women and children of the North, than that "the North 
has been governed by the slaves of the South"? 

Immense, indeed, has been the advantage of the clause 
in question to the South ! Only let Mr. Ludlow, or one 
of his school, estimate this advantage, and it is sufficient 
to astonish the world! It gives to "every poor white" 
at the South, "however ignorant and miserable," "ten 
times the political power qf the Northerner, be he never so 
steady, never so wealth}^, never so able."* How wonder- 
ful the disparity! And, considering that "all men are 
created equal," how infinitely more wonderful, that the 
wealthy and the able Northerner should have so long and 
so patiently submitted to such an amazing inequality! 
"What ! The rich Northerner, the merchant prince, or the 
great lord of the loom, only the one-tenth part of the 

* History, p. 49. 



IS DAVIS A TRAITOR? 2^7 

political power of the "poor white" at the South! Is it 
possible? Mr. Ludlow proves the whole thing by figures; 
and "figures," it is said, "cannot lie." Let us see, then, 
this wonderful proof of the wonderful fact. "Suppose," 
BSiys Mr. Ludlow, "300,000 be the figures of population 
required to return a representative, then, whilst 300,000 
freemen of the North are required for the purpose, 30,000 
Southerners, owning collectively 450,000 slaves, or 15 on 
an average (many plantations employing hundreds) are 
their equals politicall}^, and every "poor white," however 
ignorant and miserable, has his vanity gratified by stand- 
ing at the ballot-box the equal of his richest slave-holding 
neighbor, whilst each of them is equally invested with 
ten times the political power of the Northerner, be he 
never so steady, never so wealthy, and never so able." 
But he must, indeed, have been a most "ignorant and 
miserable" white, if he could have had his vanity grati- 
fied, or his judgment swayed, by any such logical pro- 
cess or conclusion. This specimen of logic, or rather of 
legerdemain, only assumes that none but "the 30,000 
Southerners," with their "450,000 slaves, or fifteen on an 
average," are included in the basis of representation. 
But since, in fact, all persons are included in that basis, Mr. 
Ludlow should have taken some little paiiis to explain to 
his poor ignorant readers how it is possible for eight mil- 
lions of whites to own only four millions of blacks; and 
yet for each white to own, "on an average," as many as 
"fifteen slaves." It would seem, without much calcula- 
tion, that, in such a case, there could be only one slave to 
every two whites. If so, then if the slaves had been 
regarded as whole "persons;" the Southerner would have 
had only one and a half times the power of the North- 
erner. But as, in fact, the slave was counted as little 
more than the half of a person ; so the Southerner pos- 
sessed only a little more than one and a quarter times as 
much political power as his Northern neighbor. There 



228 IB DAVIS A TRAITOR? 

was, then, no reason why the vanity of the poor, ignor- 
ant white of the South should have been so highly grati- 
fied, nor why the pride of the rich nabob of the North 
should have been so deeply wounded. 

But this whole way of viewing the subject is, in reality, 
perfectly puerile. What has the political power of the indi- 
vidual to do with siich a question? There is the broad 
fact, acknowledged by all parties and all sections, that, at 
the time the Constitution was formed, the South was supe- 
rior to the North both in wealth and population. Hence, 
if either wealth or population had been made the basis of 
representation, and fairly carried out in practice, the 
South would have had the majority in one branch of Con- 
gress. As it was, however, the North resolutely fought 
for and secured the majority in both branches thereof. 
"Was not this, then, sufficient to gratify the pride of the 
North, as well to humble that of the South. Suppose that 
in a society of ten millions of people, eight millions are 
united by one interest, and the remaining two millions by 
another interest. Suppose, again, that in order to get the 
two millions to enter into such a society, each individual 
of them had been allowed two votes, or twice as much 
power as an individual of the eight millions. Would this 
render the two millions secure? Would this give the 
minority a "defensive power" against the majority? 
"Ignorant and miserable," indeed, must be the individual 
in such a minority, if his vanity could be gratified by the 
possession of twi^ as much power as an individual of the 
majority, while that majority had the power to rob him 
of both his purse and his good name. 

The only strange thing in the transaction is, why the 
South should have consented to enter into so unequal a 
union with the North. Why she should have entrusted her 
rights, her interests, her honor, her glory, and her whole 
destin}^, to the care and keeping of a foreign and hostile 
majority. This seems the more wonderful; because, at 



IS DAVIS A TEAITOR? 229 

that time, evei-y statesman in America regarded nothing 
as more certain than the tyranny of the majority. "Com- 
plaints are everywhere heard," said Mr. Madison, in The 
Federalist, " from our most considerate and virtuous citi- 
zens that measures are too often decided, not accord- 
ing to the rules of justice, and the rights of the minor par- 
ty, but by the superior foi-ce of an interested and over- 
bearing majority."* 

It was the grand object of the Convention of 1787 to 
correct this tendency, this radical vice, if not this incura- 
ble evil, of all democratic republics. The evils under which 
the country labors, it was said in that Convention, are, on 
all hands, "traced to the turbulance and violence of democ- 
racy," to the injustice and tyranny of the majority. "To 
secure the public good, and private rights," said The Fed- 
eralist, "against the danger of such a faction, (i. e. of such 
"an interested and overbearing majority,") and at the 
same time to preserve the spirit and the form of a popular 
government, is then the great object to which our inquiries 
are directed. Let me add, that it is the great desidera- 
tum, by which alone this form of government can be res- 
cued from the opprobrium under which it has so long 
labored, and be recommended to the esteem and adoption 
of m-ankind." f Did the South, then, with her eyes open, 
Avillingly put her neck in the yoke of such a majority? If, 
as every Southern statesman knew perfectly well, "it is 
of great importance in a republic to guard one part of 
society against the injustice of another part;" | did the 
South really fail to demand such a safeguard? Did she 
place herself under the rule of the North, without taking 
any security for her protection, without claiming any 
"constitutional power of defence?" Nothing was further 
from her thoughts. If she had been seduced into the 
Union by the idea, by the immense advantage, that each 
of her citizens would have a little more power in one 

*No. X. fFederalist No. X. J Ibid. 



230 IS DAVIS A TRAITOR? 

branch of Congress than those of the North; she would 
have been the weakest and most contemptible of creatures. 

The citizen of a small State, such as Delaware or Ehode 
Island, might have had ten, or twenty, or thirty times 
the power in the other House of Congress, which a cit- 
izen of Pennsylvania or Yirginia possessed; and yet this 
would not have satisfied him unless the small States 
could have controlled that branch of the Legislature. 
This control of the Senate was demanded for the small 
States, as one of the indispensable conditions of Union, and 
this demand was conceded to them; in order that the 
minority might, in this instance, enjoy that freedom, 
and independence, which it had resolutely refused to hold 
at the mercy of the majority. 

By all the principles, then, of the Convention of 1787, 
by the great object for which that Convention assembled, 
by the very nature and design of all constitutional repub- 
lics ; they were bound to jjrotect the minority against the 
majority. They were, especially, bound to protect the 
South against the North ; the weaker and the richer sec- 
tions against the stronger and the more rapacious. Ac- 
cordingly, this was the grand object of the Convention. 
The design was good; but the execution was bad. The 
South insisted on the three-fifths clause, and some North- 
ern members resisted its enactment; because it was be- 
lieved, on both sides, that this would ultimately give the 
South a majority in the House of Eepresentatives. It 
would, as every one knew, give the North the majority 
at the outset; but population was, before the adoption of 
the new Union, so much more rapidly increasing at the 
South than at the North, that the Convention believed 
that the South would soon gain the ascendency in the 

lower House of Congress. The debates of the Conven- 

• 
tion bear ample and overwhelming testimony to the prev- 
alence of this belief. The speeches of Madison, Mason, 
Pinckney, Butler, and others from the South, as well as 



IS DAVIS A TRAITOR? 231 

of Morris, King, "Wilson, and others from the North, con- 
clusively show that the Convention intended to allow the 
South the prospect of a majority in one bi-anch of Con- 
gress. Such was the object and design of the three-fifths 
clause. Such was the reason of the Convention for ad- 
mitting a fraction of the slave population into the basis 
of representation. From this point of view, that provis- 
ion appears as reasonable and just to every thinking man, 
as from any other it seems strange, singular, anomo- 
lous. It was, as Eufus King, of Massachusetts, declared 
in the Convention, due to the South, as a constitutional 
power of defence, or protection, in the new Union. 

This "singular provision," then, about which so much has 
been said and so little known, did, according to the design 
of its authors, lie at the very foundation of the Constitu- 
tion of the United States. Neither the large States nor 
the small States, neither the North nor the South, would 
agree to enlarge the powers of the common government, 
until they could first see how those powers were to be dis- 
tributed among themselves as the princijjal parties to "the 
compact of the Constitution." Neither the North nor the 
South would, for one moment, have dreamed of entering 
into the new Union, if it had believed that the other 
would continue to have a majority in both branches of the 
Federal Legislature. Neither would have consented thus 
to hold its rights and interests at the mercy of the other. 
Each was, as the debates show, perfectl}^ AA-illing to hold 
the reins of empire and dominion over the other. But 
while each was thus perfectly willing to rule, it had some 
little objection against being ruled. It could easily trust 
itself, but not its rival, with the control of the supreme 
power, and it was, no doubt, amply prepared to bear with 
becoming fortitude any hardship or danger, which might 
result to its ally from such an arrangement in its own 
favor. Hence the absolute necessity of the compromise in 
question. On no other terms, or conditions, could the new 



232 IS DAVIS A TRAITOR? 

Union, with its vastly augmented powers, have arisen 
between the two great sections, which Avere so violently 
agitated and repelled by similar electricities. That " com- 
promise," then, that "singular provision," that partial 
admission of slaves into the basis of representation, was 
introduced and enacted to adjust the balance of power 
between the North and the South. It was one of the fun- 
damental principles of the Constitution, without which 
"the more perfect Union" could not have been formed 
between the sections. 

The three-fifths clause or compromise, then, intended to 
give the one section, as well as the other, a defensive pow- 
er in the new Union, was absolutely indispensable to the 
formation of that Union. Such a defensive power was, 
indeed, deemed by a majority of the fathers of the Con- 
stitution, absolutely indispensable to the safety, freedom, 
and independence of each of the sections in the Union. 
Yet, however strange it may seem, no public man in 
America has, from that day to this, taken the pains to 
make himself acquainted with the reason and design of 
that fundamental provision of the Constitution of the 
United States! 

The author of the "American Conflict" regards slaves 
as "human beings"; and quotes the clause in question, 
"three-fifths of all other persons" to prove that the Con- 
stitution regards them in the same light. Why, then, says 
he, were they not represented "like other human beings, 
like women and children, and other persons, ignorant, 
humble, and powerless, like themselves?" The answer is 
very easy. Although the Convention did, as their pi-o- 
ceedings show, adopt population on the basis of represen- 
tation; yet was the majority more bent on the possession 
of power, than on the preservation of their logical con- 
sistency. If. instead of compromising the difficulty, the 
South had persisted in pushing the principle adopted by 
the Convention to its logical conclusion ; then would the 



IS DAVIS A TRAITOR? 233 

great design of that body of legislators have been spoiled, 
and all prospects of the "more perfect Union" blown 
into thin air. So much for one horn of his formidable 
dilemma. "If, on the other hand," says he, "you con- 
sider them property — mere chattels personal, why should 
they be represented any more than ships, or houses, or 
cattle? Here is a nabob, who values his favorite high- 
bred horse at five thousand dollars, and five of his able 
bodied negroes at the same amount. "Why should his 
five negroes count as three men in apportioning the rep- 
resentatives in Congress among the several States, while 
the blooded horse counts for just nothing at all?" Here, 
again, the answer is perfectly easy. The slaves were 
not counted as property at all; and, consequently, there 
was no inconsistency in excluding horses, or other quadru- 
peds, from the basis of representation. Thus, neither the 
horn of the dilemma is quite as unanswerable as the au- 
thor imagines it to be, and utterly fails to show the ab- 
surdity of the clause in question as one of the "unsightly 
and anomolous " excrescences of the slave power. 

In reply to the two questions of his own dilemma 
the author says: "We can only answer that Slavery and 
Reason travel different roads, and that he strives in vain 
who labors to make these roads even seem parallel." Such 
is his profound commentary on one of the most important 
clauses, one of the most indispensable provisions, of the 
Constitution of his country. He is, in the same spirit, 
pleased to speak of- this j)ro vision of the Constitution, as 
if it had been hastily adopted by the Convention, "with- 
out much debate or demur;"* and that, too, just after he 
had quoted the undeniable words of one of the most cele- 
brated members of the Convention, which show that it 
had "been settled" only "after much diffieitlty and delib- 
eration."-}- Roger Sherman was right; and Horace Greely 
was wrong. The Convention had something more to do 

* The American Conflict, p. 46. f Ibid p. 43. 



234 IS DAVIS A TRAITOR? 

than merely to " split the difference " between two hairs, 
or abstractions; they had to adjust the balance of power 
between the two great rival sections of the United States ; 
a problem which lay at the very foundation of the new 
Union, and upon the satisfactory solution of which the 
whole superstructure was destined to depend. It is 
absurd, as well as untrue, to say that such a question was 
settled without much difficulty. It exercised, to the 
utmost, all the sagacity and wisdom of the Convention of 
1787. That wisdom is, no doubt, utter foolishness to the 
rabid rage of radical reformers; which never fails to con- 
demn constitutions and laws wi^out even knowing, or 
caring to know, the reasons on which they are founded. 

"Slavery and Eeason" have, it is true, often travelled 
"different roads." But, in the case before us, the South 
would have been glad to travel the same road with Eeason, 
and follow the principle of the Convention to its logical 
conclusion. But the sturdy North would not listen to 
that conclusion. Hence, if the South departed from the 
road of Eeason at all, it was in order to meet the hard 
demands of the North, and join in the Union, which has 
proved her ruin. 

It proved her ruin ; just because the balance of power, 
which the fathers intended to establish between the two 
sections, was overthrown and destroyed. That equilib- 
rium, or balance of power, was, in the opinion of the 
fathers, indispensable to the safety, freedom, and inde- 
pendence of each section in the Union; and its destruc- 
tion has illustrated and confirmed the wisdom of their 
decision. 

On this subject, a distinguished Northern writer, in 
1860, used the following language: 

"At the time of the adoption of the federal Constitution 
the condition of slaves was very different at the South 
from what it has since become. At that time there was, 
as we have shown in a previous chapter, no large branch 



IS DAVIS A TRAITOR? 235 

of industry to engage the blacks, and their future fate 
was matter of anxiety. The progress of the cotton cul- 
ture lias changed that, and the interests of millions of 
whites now depend upon the blacks. The opinions of 
statesmen of that day were formed upon existing facts; 
could they have seen fifty years into the future their 
views upon black employment would have undergone an 
entire change. The blacks were then prospectively a bur- 
den; they are now an absolute necessity. They then 
threatened American civilization; they are now its sup- 
port. With multiplying numbers they have added to the 
national wealth. They have become the instruments of 
political agitation, while they have conferred wealth upon 
the masses. 

From the moment of the formation of the Federal 
Union there commenced a struggle for political power 
which has not ceased to be directed against the Slave 
States. The instrument of union, while it provided for 
the extinction of the slave-trade, which then foi-med so 
large a portion of Northern traffic, contained also a pro- 
vion for black representation in the Southern States, stip- 
ulating that that representation should not be changed 
until 1808, and thereafter only by a vote of three-fourths 
of all the States. That jorovision has been the ground-work 
of that constant Northern aggression upon Southern interests 
which has so successfully gained on the federal poicer until 
now it imagines the desired three-fourths is within its reach, 
lohen the South, with its interests, will he at the feet of the 
abolitionists. The South has stood steadily on its defence, 
but while ^le circle has narrowed in upon it, the North 
has not ceased to clamor against Southern aggression! 
Like Jemmy Twitcher, in the farce, who, having robbed a 
passenger, loses the plunder, and exclaims, "there must 
be some dishonest person in the neighborhood! " * * * 
The original 13 States that adopted this Constitution 

/"ere all Slave States with the exception of Massachusetts, 



236 IS DAVIS A TRAITOR? 

which, although it then held no slaves had an interest in 
continuing the slave trade, in opposition to the wishes of 
the Slave States. The struggle in the Convention in re- 
lation to the discontinuance of the slave-trade, was be-" 
tAveen the New England States, that desired the traffic, ' 
ai^dYirginia and Delaware that wished no more slaves, 
while those Southern States that had but a few blacks de- 
sired to import them without tax. On the vote New 
.Hampshire and Massaeluisetts voted to continue the 
trade until 1808, and A^irginia and Delaware voted "nay," 
prior it s immediate discontinuance. ANo sooner had the 
Constitution l»oeii adopted, howovor, than the annexation 
of Louisiana became a necessity, in order to give an out- 
let to the sea for the produce of the "West, but, notwith- 
-^ standing the great advantage which the annexation was 
to confer upon Massachusetts, she oppoeed it to the point 
of threatening to dissolve the Union' if it was carried 
out. That, after the great rebellion of Shay within her 
borders, was the first disunion threat, and the motive was 
fear of the political increase of Southern strength. Those 
fears were like all party j^retences, short-sighted, since 
that territory has given more Free than Slaves States to 
the Union. This threat of disunion was made while jqI 
Massachusetts was engaged in the slave-trade, that the 
State had voted to prolong to 1808. The same cry was 
renewed in respect of Florida, and again, with greater 
violence, in the case of Missouri; to be again revived in 
respect of Texas; and once more, with circumstances of 
greater ati'ocity in the case of Kansas. It is remarkable 
that while Free States come in without any great strug- 
gle on the part of the South, the safety of which is 
threatened by each such accession, the admission of Slave 
States is the signal of so much strife, and this resistance 
to a manifest right of the South is denounced as "South- 
ern aggression." 

The gradual abolition of slavery in the old Northern 



IS DAVIS A TRAITOR? 237 

States, and the rapidity with which Eastern capital, fol- 
lowing migration, has settled the "Western States, has 
given a large preponderance to the free interest in the 
national councils. Of the 26 senators that sat in the first 
Congress, all represented a slave interest, more or less ; 
with the States and territories now knocking for admis- 
sion, there are 72 senators, of whom 32 only represent 
the slave interest. That interest, from being "a unit" in 
the Senate, has sunk to a minority of four, and yet the 
majority do not cease to complain of Southern "aggres- 
sion." With this rapid decline in the Southern vote in 
the great "conservative body" of the Senate, the repre- 
sentation in the lower House has fallen to one-third. How 
long will it be before the desired three-fourths vote, for 
which a large party pant, will have been obtained, and, 
when obtained, what will have become of those Southern 
rights which are even now denied by party leaders to be 
any rights at all. In the last 30 years 11 Free States 
have been prepared for the Union ; a similar progress in 
the next 30 years and the South will have fallen intolhat 
constitutional minority which may deprive it of all re- 
served rights. This circle is closing rapidly in upon it, 
amid a continually rising cry of abolition, pointed by 
bloody inroads of armed men. This is called Southern 
"aggression."* 

The balance of power was overthrown. The South 
lost, more and more, her original equality in the Union; 
and the just design of the fathers was despised and 
trampled under foot by the Northern Demos. Every cen- 
sus showed, that her power had diminished, as her dangers 
had increased; and she no longer found herself in the ori- 
ginal Union of equal sections. On the contrary, she found 
herself in a minority, which the Southern men of 1787 
would have shunned as the plague ; and threatened by a vast 
majority as cruel as death, and as inexorable as the grave. 

* Southern Wealth and Northern Profits, p. 139-40. 



238 IS DAVIS A TRAITOR? 

This was not the Uniou of the fathers; but the warped, 
and perverted Union of unjust rule and domination. The 
States of New England, never failed to threaten a dissolu- 
tion of the Union, whenever, in their jealous imaginations, 
there seemed even a prospect that the balance of power 
might turn in favor of the South in only one branch of 
Congress. Yet the more this balance was actually turned 
in their own favor, and the South, contrary to the design 
of the fathers, reduced to a hopeless minority, the more 
imperiously they demanded her implicit submission to 
Northern rule, and the more fiercely was denounced her 
every struggle to maintain her original equality and inde- 
pendence as " Southern- aggression." 

From a table in the work above quoted, it appears that, 
at each succeeding census, the relative increase of the two 
sections in the House of Eepresentatives was as follows : 



Before Census. 
North, 35 
South, 30 


1790. 
57 
53 


1800. 

77 
65 


1810. 

104 

79 


1820. 

133 

90 


1830. 

141 

100 


1840. 

135 

88 


1850. 

144 

90 


Majority, 5 


4 


12 


25 


43 


41 


47 


54 



Thus, in one branch of the Legislature, the Northern 
majority, counting Delaware as a Southern State, had 
increased from a majority of five to a majority of fifty-four 
representatives. The South, as every reader of American 
history must know, never would have entered into so une- 
qual a Union with the North ; and the North would not 
have continued in the Union, if she had not always 
retained the balance of power in her own hands, and in 
both branches of Congress. 

As the North had so great a majority in the House, it 
was the more important that the South should, at least, 
retain her original share of power in the Senate. But 
even this, she was not allowed to do. In order to gain 
the complete and uncontrolled ascendency in the Senate, 
as she had done in the House, the North began to exclude 



IS DAVIS A TRAITOR? 239 

all slave-holding States from the Union. This she at- 
tempted in regard to Missouri, and persisted in her uncon- 
stitutional attitude, until she was defeated by the votes 
of a few Northern democrats, who sacrificed themselves to 
save the Union and their own party. After the restora- 
tion of the democratic party, and during its reign, the 
rights of the States were so clearly vindicated, and so 
j&rmly established, that few ventured to claim for Congress 
the power to exclude a State fi'om the Union, because she 
held slaves. Hence the Eepublican party changed its 
tactics; and endeavored to effect the same unconstitutional 
design in another way. Not daring to say, as their pre- 
decessor had done, that Congress could exclude a slave- 
holding State from the Union, they determined that no 
more such States should be formed. For this purpose, 
they resolved to exclude the South from all the territories 
of the Union ; so that no addition should ever be made to 
her power, while that of the North was allowed to increase 
with still greater rapidity. The North resolved, in fact, 
that every new State formed, and admitted into the 
Union, should be an accession to her own overgrown 
power. The South might object and complain ; but what 
could she do? Was she not already in a helpless minority? 
If we count Delaware as a Southern State, then the 
North, instead of a majority one State in the Senate, had a 
majority of three States, or of six votes, before the first 
Southern State seceded from the Union. There were eigh- 
teen Northei*n, and only fifteen Southern States, represented 
in that branch of Congress; which was designed to act 
as a check on the majority in the House of Representa- 
tives. Nor was this all. For there were, at that time, 
nearly ready to come into the Union — Kansas, Minnesota, 
Oregon, Washington, Nebraska, Utah, and New Mexico, 
which would have made the Northern majority as over- 
whelming in that body, as it was ill the other branch of , 
the Federal Legislature. If tlje tables had been turned* 



240 IS DAVIS A TRAITOR? 

if the picture had been reversed, the North would have 
laughed such a Union to scorn. She could not even tol- 
erate, indeed, the bare thought, or imagination, that the 
South might gain the ascendency in the Senate, in only- 
one branch of the Federal Legislature. 

Thus, while the greedy North continued to grow in 
power, and in a determination to crush the South beneath 
her feet, she filled the earth with her clamors about "the 
aggressions of the slave power;" appealing to the preju- 
dices and passions of mankind in her unholy crusade 
against an unknown and desj)ised people. The South 
simply stood on the defensive. The one struggled for 
empire, for dominion; the other for indejDendence, for 
existence. The one struggled to preserve her original 
equality in the Union ; the other to destroy that equality. 
The one directed all its efforts to uphold the balance of 
power, established by the authors of the Constitution, 
and deemed by them the only safeguard of freedom in 
the Union ; the other bent all its energies to break that 
balance, and grind its fragments to powder. 

Hence the South became extremely sensible of the dan- 
gers of her position in the Union. All hope of a "consti- 
tutional power of defence" therein, had been wrested 
from her grasp. That safeguard of her freedom and inde- 
pendence, which the founders of the Eepublic deemed so 
essential to both ends of the Union, no longer existed for 
the South; and she held her rights and interests at the 
mercy of the North, as it was never intended she should 
hold them. She could see, therefore, as clearly as Profes- 
sor Cairnes, that the extinction of her freedom and inde- 
pendence was, sooner or later, her inevitable destiny in the 
Union. That dark destiny, however, she beheld with far 
other eyes than those with which it was contemplated by 
the Professor of Jurispj-udence. Eeholding, with fanatical 
^delight, the ultimate ruin of the South in the Union, he 
denounced secession as treuson ^nd rebellion ; bait it is to 



IS DAVIS A TRAITOR? 241 

be hoped that, in the estimation of manlvind, it will not be 
deemed an unpardonable offence, if she was not entirely 
devoid of the natural instinct of self-preservation. 

Jefferson Davis, in the name of the South, gave utter- 
ance to this natural instinct in the Senate of the United 
States in 1850. "The danger," said he, "is one of our own 
times, and it is that sectional division of the people which 
has created the necessity of looking to the question of the 
balance of power, and which carries with it, when dis- 
turbed, the danger of disunion." Such was the treason of 
Jefferson Davis in 1850 ! But ftxr bolder language had been 
used by Northern Statesmen, and by JSTorthern Legisla- 
tures, in behalf of the North ; not because the jSTorth was 
in a present or real, but only because she was in a future 
and purely imaginary, minority. The treason of tho weak 
is the patriotism of the strong. 

The Relative Decline of the South in the new Union. 

It is a remarkable fact, that from the first settlement of 
the country, the South continued to increase in population 
and wealth more rapidlj^ than the North, till the new 
Union was established. In the Convention of 1787, it was, 
on all sides, conceded that the South surpassed the North 
both in population and in wealth. But from that event, 
from the inauguration of the "more perfect Union," her 
relative decline began. This fact has always been ascribed, 
by the enemies of the South, to the malign influence of the 
institution of slavery. But slavery existed before the new 
Union without producing any such effect. Hence, how- 
ever great the evil influence of slavery may have been, it 
was not sufficient to counteract the great natural advan- 
tages of the South, until the new Union came to its aid. 
The action of the Federal Government was, in the oj)inion 
of many impartial judges, the great caxise of this relative 
decline of the South, in spite of the resources which nature, 
12 



244 IS DAVIS A TRAITOR? 

' Mr. Benton answers this question ; and though his an- 
swer is diametrically opposed to the views of the Bright 
and Cobden school, he is the great authority whom Mr. 
Ludlow himself has brought upon the stand. Under 
"Federal legislation," says Mr. Benton, "the exports of 

the South have been the basis of the Federal revenue 

Virginia, the two Carolinas, a7id Georgia, may be said to de- 
fray three-fourths of the annual expense of supporting the 
Federal Government ; and of this great sum annually fur- 
nished by them, nothing or next to nothing is returned to 
them in the shape of Government expenditures. That 
expenditure flows in an opposite direction — it flows north- 
wardly in one uniform, uninterrupted, and perennial 
stream. This is the reason ivhy wealth disappears from the 
South and rises up in the North. Federal legislation does all 
this. It does it b}^ the simple process of eternally taking 
from the South and returning nothing to it. If it return- 
ed to the South the whole or even a good part of what it 
exacted, the four States south of the Potomac might stand 
the action of the system, but the South must be exhaust- 
ed of its money and property by a course of legislation 
which is forever taking away and never returning any- 
thing. Every new tariff increases the force of this action. 
No tariff has ever yet included Virginia, the two Carolinas, 
and Georgia, except to increase the burdens imposed upon 



„>H5r wa 



was Mr. Benton alone in this opinion. The politi- 
cal economists of the North, such as Carey, Elliot, Ket- 
tell, and others, who had studied the sources of national 
wealth in America, gave precisely the same explanation 
of the sudden and wonderful disappearance of wealth from 
the South. The North might easily satisfy its own con- 
science, by making slavery the scape-goat for its sins; but 
thinking men, even at the North, were not so readily 
deceived. Hence, in an able work entitled "Southern 
"Wealth and Northern Profits," the author does not hesi- 



18 DAVIS A TRAITOR? • 245 

tate to tell the people of his own section, that it was gross 
injustice, if not hypocrisy, to be alwaj^s growing rich on 
the profits of slave-labor; and, at the same time, to be 
eternally taunting and insulting the South on account of 
slavery. Though it was bitterl}^ denounced as " the sum of 
all villainies;" it was, nevertheless, the principal factor in 
Northern wealth. 

In like manner. Professor Elliot, though a Northern 
man, and an enemy to slavery; yet, as a political econo- 
mist, and teacher of the science in a Northern college, he 
denied that it had impoverished the South. On the con- 
trary, he has, in a Avork styled "Cotton is King," shown 
that slave-labor has been one of the great sources of 
Northern wealth. Is it any wonder, then, that the think- 
ing men of the South should have entertained the same 
opinion? Is it any wonder, that they should have agreed 
with Benton, and Kettell, and Elliot, and other Northern 
writers, that it was legislation, and not slavery, which had 
impoverished the South? It is certain, that such was the 
conclusion of the thinking men of the South, in view of 
her sad and frightfully altered condition. 

"Such a result," says Mr. Benton, "is a strange and 
wonderful phenomenon. It calls upon statesmen to enquire 
into the cause; and if they enquire upon the theatre of this 
strange metamorphosis they will receive one universal 
answer from all ranks and ages, that it is Federal legislation 
which has worked this ruin." If, under such circumstances 
or belief, the South had been satisfied with the action of 
the Federal Government, her peojole must have been the 
greatest of all simpletons, or the most patient of all saints. 
They were neither; they were merely human beings, who 
had some little regard for their own interests, as well as 
for those of their neighbors. Hence, the tariffs of the 
United States, by which one portion of the peoj)le was 
impoverished for the benefit of another portion of the peo- 
ple, left in the minds of the most influential men of the 



246 18 DAVIS A TRAITOR? 

South a deep and abiding sense of the injustice of North- 
ern legislation. 

What less could have been anticipated? All majorities 
are, in fact, unjust, despotic and oppressive. Hence, in 
the opinion of the Convention of 1787, if either section 
should have the majority in both branches of Congress, it 
would oppress the other. As this opinion was founded on 
the experience of the past, so it was afterward confirmed 
by the history of the future. Indeed, if the North, with 
a majority in both branches of Congress, had not op- 
pressed the South, it would have been unlike every other 
unchecked power in the history of the world. 

There have been, no doubt, lets, hindrances, and pauses 
in this onward march of the triumphant power of the 
North. But it has always had its eye fixed on one object 
of supreme desire, namely, on absolute' dominion and 
control. It had already become absolutely overwhelming 
in one branch of Congress, with the certainty of soon be- 
coming equally overwhelming in the other. There was 
not a member of the Convention of 1787, who, if his own 
section had been in the minority, would not have shrunk 
from such a Union with horror. He must indeed have 
been profoundly ignorant of the sentiments of the fathers, 
as well as of the character of all interested majorities, who 
could have supposed, for a moment, that the South might 
have been free, or safe, or happy in such a Union. What! 
is that freedom which is held at the mercy of another? 
Is that safety which depends on the will of an inter- 
ested majority? 

What was to have been expected from such a majority, 
is well described in the speeches of John C. Calhoun ; in the 
"Essay on Liberty" by John Stuart Mill ; and in the cel- 
ebrated work of De Tocqueville on "Democracy in Amer- 
ica." Both De Tocqueville and Mill are advocates of democ- 
racy ; and yet, if possible, they draw more frightful pic- 
tures of the tyranny of an unchecked majority, than has 



18 DAVIS A TRAITOR? 247 

John C. Calhoun himself. " The majority in that country," 
[the United States,] saj'S M. De Tooqueville, "exercise a 
prodigious actual authorit}', and a moral influence which 
is scarcely less preponderant; no obstacles exist which can 
impede, or so much as retard its progress, or Avhich can 
induce it to heed the complaints of those whom it crushes 
upon its path." * How cold, then, and heartless, such a 
majority! Ciniel as death, and inexorable as the grave, it 
turns a deaf ear to the outcries of those whom it crushes 
upon its path! 

But if such was the unprejudiced conclusion of a great 
philosphic observer in 1833, what was to have been ex- 
pected from a sectional majoritj', growing continually in 
greatness, in power, and in hatred of the sectional minori- 
ty? Had the South no reason for her fears? If not, then 
De Tocqueville, and Mill, and Calhoun, were the veriest 
simpletons that ever lived. If not, then the founders of 
the Eepublic had all read the history of their own times 
wrong, and wrote libels on the character of unshackled 
majorities? 

M. De Tocqueville has told the exact truth. "This 
state of things," said he, in 1833, " is fatal in itself, and 

dangerous for the future If the free institutions 

of America are ever destroyed, that event may be attrib- 
uted to the unlimited authority of the majority 

Anarchy will then be the result, but it will have been 
brought about by despotism." f 

The Formation of a Faction. 

There is a vast difference between a political party and 
a faction. The one is legitimate, healthful, and conserva- 
tive; the other is the fatal disease of which nearly all 
republics have perished. The one is united by principles, 
or designs, which persons in any pai't of the Eepublic may 
freely adopt and cherish; the other is animated by a 
^Democracy in America, Vol. i, p. 301. flbid, p. 317. 



248 IS DAVIS A TRAITOR? 

"common interest, or passion," wliich is hostile to other 
interests of the same community. Xow, the great object 
of the legislation of 1787, was to provide a remedy for the ♦ 
fatal effects of faction. 

* " Among the numerous advantages," says The Federal- 
ist, "promised by a well constructed union, none deserves 
to be more Accurately developed than its tendency to 
break and control the violence of faction. The friend of 
pojDular governments, never finds himself so much alarmed 
for their character and fate, as when he contemplates 
their propensity to this dangerous vice. He will not fail, 
therefore, to set a due value on any jjlan which, without 
violating the principles to which he is attached, provides 
a proper cure for it."* Mr. Madison, the author of the 
above words, used still more impressive language on the 
same subject, in the Yirginia Convention of 1788. " On a 
candid examination of history," he there said, "we shall 
find that turbulence, violence, and abuse of power, by the 
majority trampling on the rights of the minority, have produced 
factions and commotions, which, in republics, have more fre- 
quently than any other cause, produced despotism. If we go 
over the whole history of ancient and modern republics, we shall 
find their destruction to have generally resulted from those 
causes. If we consider the peculiar situation op the 
United States, and what are the sources of that 
diversity of sentiment which pervades its inhabi- 
tants, we shall find greater danger to fear, that the 
same causes may tjirminate here, in the same fatal 

EFFECTS, WHICH THEY PRODUCED IN THOSE EePUBLICS."! 

Here, then, was the rock on which the new Eepublic 
was in the greatest danger of being dashed to pieces. 
Hence, Mr Madison well adds: "This danger ought to 
be wisely guarded against." Otherwise, the great Eepub- 
lic must inevitably split on the rock of faction, and go to 
the bottom, with the republics of the past. 

•*No. X. f Elliot's Debates, vol. iii, p. 109. 



IS DAVIS A TRAITOR? 249 

It was, therefore, the great object of the legislation of 
1787, to guard the now Eepublic against the rise, or form- 
ation, of a faction. This, as we have already seen, is well 
stated in The Federalist, as follows: "When a majority is 
included in a faction, the form of popular government, en- 
ables it to sacrifice to its ruling passion, or interest, both the 
public good and the rights of other citizens. To secure the 
public good, and private rights, against the danger of such a 
faction, and at the same time to preserve the spirit and the 
form of a popular government, is the great object to tvhich our 
inquiries are directed. Let me add, that it is the great desid- 
eratum, by which alone this form of government can be rescued 
from the opprobrium under which it has so long labored, and be 
recommended to the esteem and adoption of mankind.'' * 

By what means, then, did the legislators of 1787, hope 
to remedy the evils of faction ; to subdue, if not to eradi- 
cate, that fatal disease of republics? Mr. Madison rejjlies: 
^^ Perhaps, in the progress of this discussion, it will appear 
that the only possible remedy for those evils and means of 
protecting the principles of Eepublicanism, will be found 
in that very system which is now exclaimed against as the 
parent of despotism. "f That is, in the new Union of 1787. 

Now where, and how, did the new Union provide "the 
only possible remedy " against the evils of faction ? Ac- 
cording to the view of Mr. Madison, and of the majority 
of the Convention of '87, neither the North nor the South 
would be able to form itself into a dangerous fjiction; 
because, as they said, each section will have a majority in 
one branch of Congress ; and thereby hold a constitutional 
check on the power of the other. But this remedy, as 
every one knows, proved a total failure. 

The other great remedy against the evils of faction, 

which, as the legislators of 1787 supposed, existed in the 

new system; would be found in the great extent of the 

Union, in the great number and diversity of its interests, 

*No. X. fElliofs Debates, Vol. iii, p. 109. 

12* 



250 TS DAVIS A TRAITOR? 

which would prevent "any one party being able to out- 
number and oppress the rest." * This remedy against fac- 
tion is repeatedly urged by Mr. Madison. Thus, he speaks 
of the new Union "as the proper antidote for the diseases 
of faction, which have proved fatal to other popular gov- 
ernments, and of which alarming sjnnptoms have been 
betrayed by our own;""]" because "the influence of fac- 
tious leaders," who "may kindle a flame within their par- 
ticular States," " will be unable to spread a great confla- 
gration through the other States." | Now this great 
remedy also proved a failure. Factious leaders did kindle 
a conflagration through all the Northern States; and the 
great North, animated by one "passion, or interest," did 
form itself into the most terrible faction the world has 
€*ver seen, and point all the lightnings of its wrath at the 
devoted South. 

The fact is not denied by many of the great champions 
of the Northern power. On the contrary, it was made a 
ground of exultation and boasting, by some of her most 
eloquent orators. Thus, it was said "no man has a right 
to be surprised at this state of things. It is just what we 
have attempted to bring about. It is the Jii'st sectional 
party ever organized, in this country. It does not know its oum 
face, and calls itself national; but it is not national — it is sec- 
tional. The Eepublican party is a party or the North 
PLEDGED AGAINST THE SouTH." § Nothing could havc been 
more true. Thus, under and in spite of the Constitution de- 
signed for the protection of all sections and of all interests 
alike, the North did form itself into a faction, and seize all 
the powers of the Federal Government. This may have 
been rare sport to the leaders of the faction ; it was the 
death-knell of the Republic. It was, — the founders of 
the Union themselves being the judges, — the fall of the 
Republic, and the rise of a despotism. 

* The Federalist, 'So. xiv. flbid. J Ibid, No. x. 
I Wendell Phillips. 



IS DAVIS A TRAITOR? 251 

This faction, it is said, did "not know its own face." 
Perhaps it was a little ashamed of its own face. It is cer- 
tain, that it was veiy loud in its professions that all its 
designs were national and constitutional; even while it 
avowed the purpose to "use all constitutional means to 
put an end to the institution of slavery." But no such 
means were known to the Constitution; which, as the 
leaders of that faction perfectly well knew, was estab- 
lished and ordained to protect all the institutions of the 
South, as well as of the North. Use all constitutional 
means indeed! Why, the very existence of such a faction, 
was an outrageous violation of the whole spirit and design 
of the Constitution of 1787. It Avas, in one word, the last 
throe of the mighty Eepublic, as it succumbed to the fatal 
disease of which so many republics had jDreviously per- 
ished. Conceived in profound contempt of the wisdom of 
Washington, who, in his Farewell Address, had so sol- 
emnly warned his countrymen against the dangers of a 
sectional party, or faction; it just marched right onward 
in the light of its own eyes over broken constitutions, and 
laws, and oaths; trampling on all alike with imperial 
scorn and proud disdain. 

The South was advised to "wait for some overt act." 
But if one finds himself in company with a strong man 
armed, who is both able and willing to crush him, is it 
wise to "wait for the overt act," or to withdraw from his 
society as soon as possible? If the strong man armed 
should make his withdrawal the occasion of his ruin; 
that would only prove, that the companionship was nei- 
ther safe, nor desirable. 

The South, it is true, did not better her condition b}'- 
her withdrawal from the North. But is not all history 
replete with similar instances of failure in the grand 
struggle for freedom, safety, and independence? In the 
golden words of The Federalist: "Justice is the end of 
government. It is the end of civil society. It ever has 



252 IS DAVIS A TRAITOR? 

been, and it ever will be pursued, until it be obtained, or 
until liberty be lost in the pursuit." * It was thus, in 
the pursuit of justice, that the South lost her liberty. If 
she had not engaged in the pursuit, she would have de- 
served to lose her liberty. 

The South, it was said, had nearly always been in the 
possession of the Government; and it was right, there- 
fore, that the North should take possession of it in her 
turn. But this is one of the lying fictions of the North. 
The South never had possession of the Government at 
all. All the great powers of the Government are, for the 
most part, lodged in the Congress of the United States, in 
neither branch of which did the South ever have a major- 
ity. She was, indeed, when she entered into the new 
Union, promised a majority in one branch of Congress; 
but that promise, like an apple of Sodom, soon turned to 
dust and ashes in her hands. 

Nor had the South as such ever had a President of the 
United States. The great democratic Jjarty generally 
selected its Presidents from the South. But this did not 
make them sectional Presidents. Neither Washington, 
nor Jefferson, nor Madison, nor Monroe, nor Jackson, nor 
Polk, was a sectional President. On the contraiy, so lit- 
tle was there of a sectional nature in their characters, or 
designs, that each and every one of them was elected to 
the Presidency of the United States, by a large majority 
of the Northern votes. Mr. Lincoln, on the other hand, 
who was a sectional candidate, and put forth on purely 
sectional grounds, did not receive a single Southern vote. 
He was, then, the candidate not of a legitimate party, but 
of the great unconstitutional and anti-republican faction 
of 1861; that is, the candidate of "the party of the North 
pledged against the South." 

The North, with a majority in both houses of Congress, 
was perfectly protected against every possible danger of 

_____ ; 



IS DAVIS A TRAITOR? 253 

oppression. If, then, a statesman from the South had al- 
ways filled the office of President; still her situation 
would have been far more precarious and unprotected 
than that of the North. The President could introduce 
no bill into Congress; he could only veto those which he 
might deem unjusf; and oppressive. Surely, a most feeble 
and uncertain protection to the South; since no man 
stood the least chance for the Presidency, who was not 
known to favor the wishes and the interests of the 
mighty North. The North, then, in possession of both 
branches of Congi'ess, and the dazzling prize of the Pres- 
idency to influence the leading politicians of the South, 
was sufficiently secure in the Union ; even if all the Pres- 
idents had come from the South. But all this did not sat- 
isfy the North. On the false plea, that the South had 
nearly always been in possession of the Government; she 
determined to take possession of all its departments, the 
supreme Executive, as well as both branches of the Fed- 
eral Legislature. Nor is this all. She determined to take 
and to keep possession of them all in the name of the 
North, alleging that the South had enjoyed them all long 
enough; and to wield them all by the terrible faction of 
"the North pledged against the South." Nor was this all. 
The great leader, or the great tool, of this faction, declar- 
ed that he was not bound by the decisions of the Supremo 
Court of the United States; that he would enforce the 
Constitution as he understood it, and not as it was under- 
stood by that high judicial tribunal. Indeed, this mighty 
faction was got up and organized in direct opposition to, and 
in open contempt of the decisions of the Supreme Court 
of the United States; both in the Dred Scott case, and in 
the case of Prigg vs. the Commonwealth of Pennsylvania. 
Its own will was its only law. 

It arose, like some monstrous abortion of night and 
darkness, from the bottomless depths of a factious con- 
tempt for all law and all authority. Th« decision of the 



254 IS DAVIS A TRAITOR? 

Supreme Court in the case of Prigg, which authorizes 
the master to seize his fugitive slave ivithout process in any 
State of the Union; was the first object of attack by the 
great leaders of this faction. The Court was denounced 
as having been corrupted by pro-slavery sentiments; 
though this very opinion was delivered by a Northern 
abolitionist; by Mr. Justice Story himself Mr. Justice 
Story could, as we have seen, go great lengths in his ad- 
vocacy of the Northern cause : but yet, as a Judge of the 
Supreme Court of the United States, he could not decide 
in direct and open violation of his oath of office. This 
instance of his integrity, in which other Northern Judges 
concurred, brought down the indignation and contempt 
of the great leaders of the Eepublican party upon the 
Court, whose opinion he had delivered. It was then 
threatened by those factious leaders, that the Sui»"eme 
Court of the United States should be reorganized, and 
made to conform to the wishes and sentiments of the 
North; a purpose which was sure of its fulfilment after 
the election of Mr. Lincoln, and which would have capped 
the climax of the lawless designs of the Northern faction 
"pledged against the South." 

Mr. Madison, "the father of the Constitution," believed 
that such a faction would never arise in the new Union. 
But he never doubted, for a moment, that if it should arise 
therein, this would prove that the Federal Government 
had failed to answer the great end of his creation. For, 
as we have seen, it was, in his own words, the great object 
of that Government, "to secure the public good, and pri- 
vate rights, against the danger of such a faction;" by pro- 
viding against the possibility^ of its appearance in the 
bosom of the Eepublic. This is the great desideratum, 
which, according to the legislators of 1787, is necessary 
to remove "the opprobrium under which that form of Gov- 
ernment has so long labored," and "to recommend it to 
the esteem and adoption of mankind;" and which they 



IS DAVIS A TRAITOR? 255 

supposed had been supplied by their legislation. But 
their remedies were too weak. Their practice was not suf- 
ficiently heroic. Hence the fatal disease of republics, the 
rise of faction, was not only engendered, but developed 
into a degree of frightful malignity, which is without a 
parallel in the history of the world. The design was good ; 
but the execution defective. The fathers, in one word, 
did not begin to foresee the weakness, the folly, the mad- 
ness, and the wickedness of their descendants. Hence, 
their sublime attempt to "establish justice, ensure domes- 
tic tranquilit}', promote the general welfare, and secure 
the blessings of liberty to their posterity;" proved an 
awful failure. Indeed, if ihQj could only have witnessed 
the gigantic and terrific faction of 1861, they would have 
pronounced their own "grand, experiment" a disastrous 
failure. It w^as so regarded by the South ; and, for that 
reason, the South wished to make an experiment for herself. 
But, unfortunately, she was already in the horrible clutches 
of a relentless and a remorseless faction. 

Factions have no heart, no conscience, no reason, no 
consistency, no shame. Would you reason with such a 
remorseless monster? You might just as well read the riot 
act to a thunder storm. Would you appease its wrath? 
Would you soothe its rampant and raging ferocit}^? 
W^ould j-ou appeal to all the tender mercies of our holy 
religion? You might just as well sing a lullaby to the 
everlasting roarings of the Pit. The South did not enter 
into the "new Union" to be governed by any such fac- 
tion. She entered into the new Union, on the contrary, in 
order to secure her freedom, her independence, her happi- 
piness, her glory; and she lost them all — except her glory. 

Even Mr. Madison, with all his devotion to the great 
work of his own hands, never became so blind an idolater 
as to resemble that epitome of meanness and climax of 
servility, — "an unconditional Union-man." On the con- 
trary, still breathing the spirit of a freemen, he said: "Were 



256 IS DAVIS A TRAITOR? 

the plan of the Convention adverse to the public happi- 
ness, mj^ voice would be, Reject the plan. Were the 
Union itself inconsistent with the public happiness, it 
would be, Abolish THE Union."* Even as late as 1830, 
he declared, that "it still remains to be seen whether the 
Union will answer the ends of its existence or otherwise." 
If he had lived till 1861, he would have seen that the 
Union, having failed to prevent the rise and reign of fac- 
tion, had not answered "the great object" of its creation; 
and, consequentl}^, no longer deserved to exist. Hence, 
in 1861, he would either have unveiled the right of seces- 
sion, or else he would have belied all the great principles, 
and sentiments, and designs of his life. 

Other Causes of Secession. 

The foregoing grounds or causes of secession are, it 
seems to me, amply sufficient to justify the South in the 
exercise of a constitutional right; for which she was 
amenable to no tribunal on earth, except to the moral sen- 
timents of mankind. But there are still other and power- 
ful causes of secession ; which it is unnecessary to discuss 
in the present work. All the grounds of secession, includ- 
ing those above considered, may be stated as follows: 

First, the destruction of the balance of power, which 
was originally established between the North and the 
South ; and which was deemed by the authors of the Con- 
stitution to be essential to the freedom, safety, and happi- 
ness of those sections of the Union. 

Secondly, the sectional legislation, by which the original 
poverty of the North was exchanged for the wealth of the 
South; contrary to the great design of the Constitution, 
which was to establish the welfare of all sections alike, 
and not the welfare of one section at the expense of 
another. 

Thirdly, the formation of a faction, or "the party of the 

* The Federalist, No. xlv. 



18 DAVIS A TRAITOR? 257 

North pledged against the South;" in direct and open vio- 
lation of the whole spirit and design of the new Union; 
involving a failure of the great ends for which the Repub- 
lic was ordained. 

Fourthly, the utter subversion and contemptuous disre- 
gard of all the checks of the Constitution, instituted and 
designed by its authors for the protection of the minority 
against the majority; and the lawless reign of the North- 
ern Demos. 

Fifthl}^, the unjust treatment of the slavery question, 
by which the compacts of the Constitution made by the 
North in favor of the South, were grossly violated by her; 
"while, at the same time, she insisted on the observance of 
all the compacts made by the South in her own favor. 

Sixthly, the sophistry and hypocricy of the North, by 
which she attempted to justify her injustice and oppression 
of the South. 

Seventhly, the horrible abuse and slander, heaped on 
the South, by the writers of the North ; in consequence of 
which she became the most despised people on the face of 
the globe ; whose presence her proud ally felt to be a con- 
tamination and a disgrace. 

Eighthly, the contemptuous denial of the right of seces- 
sion ; the false statements, and the false logic by which 
that right was concealed from the people of the North; 
and the threats of extermination in case the South should 
dare to exercise that right. 

These, it is believed, are the principal causes by which 
the last hope of fi-eedom for the South in the Union was 
extinguished; and, consequently, she determined to with- 
draw from the Union. Bravely and boldly did she strike 
for Liberty; and, if she fell, it was because, as the London 
Times said, "she had to fight the world." 



CHAPTEE XX. 

The Legislators of 1V87 as Political Prophets. 

"Every particular interest," said Mr. Madison, in the 
Convention of 1787, " whether in any class of citizens, or 
any description of States, ought to be secured as far as 
possible. Wherever there is danger of attack, there ought 
to be given a constitutional power of defence. But he 
contended that the States were divided into different 
interests, not by their difference of size, but from other cir- 
cumstances; the most material of which resulted partly 
from climate, but principally from the effects of their hav- 
ing or not having slaves. These two causes concurred in 
forming the great division of interests in the United 
States. It did not lie between the large and small States. 
It lay between the Northern and Southern ; and if any 

DEFENSIVE POWER WERE NECESSARY, IT OUGHT TO BE MUTU- 
ALLY GIVEN TO THESE TWO INTERESTS."* In this Opinion 
of the leading member from Virginia, the leading member 
from Massachusetts fully concurred. For Mr. King " was 
fully convinced that the question concerning a difference 
of interest did not lie where it had been hitherto discussed, 
between the great and the small States, but between the 
Southern and the Eastern. For this reason he had been 
willing to yield something, in the proportion of represen- 
tation, for the security of the Southern." f That is, for 
the protection of the Southern interest, he had, as we have 
seen, been willing to vote for the fractional representation 
* The Madison Papers, p. 1006. f Ibid, p. 1057. 



18 DAVIS A TRAITOR? 269 

of slaves. Such was, indeed, the opinion of the Convention. 

But while the legislators of 1787 agreed in this opinion, 
they looked into the future with very different eyes. 
Considered as political prophets, they may, in fact, be 
divided into three classes. 

At the head of the first class, there stands James Madi- 
son, "the father of the Constitution." Seeing, as he did, 
that the great diflSculty before the Convention was to ad- 
just the antagonism between the North and the South, 
he must have known that the perpetuity of the new Union 
would depend on the manner in which this difiicult}^ 
should be settled by their labors. Just before the meeting 
of the Convention, indeed, this great antagonism had 
given birth to a tremendous conflict between the North 
and South, by which the Union was shaken to its founda- 
tions. Hence, Mr. Madison had good reason to fear the 
violence of this antagonism for the future; and he did fear 
it. For he tells us, that there ought to be given a con- 
stitutional power of defence to each of these sections; 
so that neither could take advantage of the other. 

He hoped, he fancied, he predicted that this had been 
done. The South, he said, will soon have a majority in 
the House of Representatives, in consequence of the rapid 
increase of her population ; by which she will hold a check 
on the power of the North. But this adjustment of the 
great difficulty in question rested on the unstable and 
fluctuating basis of population. It soon proved to be a 
foundation of sand. The hope and the prediction of Mr. 
Madison soon appeared to have been a delusion and a 
dream. He staked the freedom, the safety, and the happi- 
ness of the South, on the happening of a future event, 
which never came to pass. 

Indeed, he did not urge his plan for the adjustment of 
the formidable antagbnism in question ; because, as he 
said, it suggested a difficulty which was too apt to arise 
of itself It was, therefore, never adjusted at all, on any 



260 IS DAVIS A TRAITOR? 

solid foundation, or secure principle; and, consequently, it 
did continue to arise of itself, and disturb the new Union 
■with convulsions, from the beginning of its career to the 
grand explosion of 1861. 

Mr. Madison always feared the effects of this great and 
imperfectly adjusted antagonism between the North and 
the South. It seems, indeed, as if he wished to hide it from 
his own eyes, as well as from those of the people. It is a 
very remarkable fact, that although in the secret Conven- 
tion of 1787, he pronounced the antagonism between the 
Northern and the Southern States the greatest of all the 
difficulties they had to dealwith; yet when, in The Fed- 
eralist^ he enumerated the difficulties the Convention had 
to encounter, no allusion whatever is made to this stupen- 
dous one. He seems to have imagined, that since it is so 
apt to arise of itself, the less that is said about it the bet- 
ter. This would, no doubt, have been very wise and 
prudent, if a great danger might be remedied by simply 
closing one's eyes upon its existence. 

Nothing more easily disturbed his patience, than any 
allusion to the great danger created by the fearful antago- 
nism in question. In The Federalist, — how unlike his 
usual style! — he pours forth the following strain of lachry- 
mose philanthropy or patriotism: "Hearken not to the 
unnatural voice, which tells you that the people of Amer- 
ica, knit together as they are by so many chords of affec- 
tion, can no longer live together as members of the same 
family; can no longer continue mutual guardians of their 

mutual happiness No, my countrymen, shut your 

ears against this unhallowed language. Shut your hearts 
against the poison which it conveys. The kindred blood 
which flows in the veins of American citizens, the mingled 
blood which they have shed in the defence of their sacred 
rights, consecrate their union, and excite horror at the 
idea of their becoming aliens, rivals, enemies."* 

* No. xiv. 



IS DAVIS A TRAITOR? 261 

Yet, in spite of all this, Mr. Madison himself miist have 
had serious misgivings with respect to his beautiful dream 
of a perpetual peace. For he knew, as we have seen, that 
there was danger of a collision between the North and 
the South. It is certain, that the voice which he pro- 
nounced unnatural, was the voice of truth. For Ameri- 
can citizens did become aliens, rivals, enemies; and min- 
gled their blood far more freely and fearfully than they 
ever had done in the defence of their common rights. But 
Mr. Madison knew, that in order to secure the adoption 
of the new Union, it would be necessary to persuade the 
people, that the very first condition of such a Union would 
always obtain ; namely, '• a sufficient amount of sympathy 
among its populations." Hence, perhaps, his dream of 
peace was not all a dream, but partly rhetoric. 

The second class of prophets seems to have been with- 
out a head. Indeed it may, perhaps, be doubted, whether 
they spoke as prophets, or as diplomatists. It is certain, 
that they encouraged the notion of Mr. Madison and other 
Southern legislators, that the South would certainly have 
a majority in the House of Eepresentatives. Several of 
the most influential of the Northern legislators seemed 
quite confident that such would be the good fortune of the 
South ; and none more so than Mr. Gouverneiir Morris. 
But were they always sincere in that belief? Or did they 
sometimes flatter the false hopes of the South, in order to 
be able to drive a better bargain with her? No finite 
mind can, perhajiS, answer these questions ; or tell whether 
the legislators in question always spoke as prophets, or 
sometimes as diplomatists. It is certain, that the expec- 
tation held out to the South, that she would be able to 
control one branch of Congress, was the promise, the 
prospect, the bait, by which she was entrapped into the 
new Union; into that tremendous dead-fall, by which, in 
1861, sh'e was crushed to the earth. Patrick Henry stood 
at the head of the third and last class of prophets. 



262 18 DAVIS A TRAITOR? 

No man ever more clearly foresaw, or more confidently 
predicted, the future, than did Patrick Henry the calami- 
which have fallen on his beloved Virginia. With some of 
the passages from this class of prophets, I shall conclude 
this little book. 

General Pinckney of South Carolina, declared, that "if 
they [the Southern States,] are to form so considerable a 
minority, and the regulation of trade is to be given to the 
General Government, they will he nothing more than over- 
seers for the Northern States." 

In like manner, Mr. Williamson, of North Carolina, 
said: "The Southern interest must be extremely endan- 
gered by the present arrangement. The Northern States 
are to have a majority in the first instance^ with the means of 
perpetuating it"-\ 

George Mason said: "He went on a principle often ad- 
vanced, and in which he concurred, that a majority, when 
interested, would oppress the minority. This maxim," 
[than which none is more just,] "had been verified in the 
Legislature of Virginia. If we compare the States in this 
point of view, the eight Northern States have an interest 
different from the five Southern States; and have, in one 
branch of the Legislature, thirty-six votes against 29, and 
in the other in the proportion of eight to three. The 
Southern States had therefore grounds for their suspi- 
cions." X 

Mr. Henry said: "But I am sure, that the dangers of 
this system are real, when those who have no similar inter- 
ests with the people of this country, [i. e. Virginia and the 
South,] are to legislate for us — when our dearest i-tcrests 
are to be left in the hands of those whose advantage it 
will be to infringe them." § 

In the same Convention, Mr. Grayson, after declaring 
that it was a struggle between the North and the South 

* Madison Papers, p. 1058. f Ibid, p. 1058. J Ibid, p. 1387. 
i Elliot's Debates, vol. iii, p. 289. 



18 DAVIS A TRAITOR? 263 

for empire, proceeded to say, "Are not all defects and 
corruptions founded on an inequality of representation and 
want of responsibility' ? My greatest objection is, that it 
will, in its operation, be found unequal, grievous and op- 
pressive. If it have anj- efficacy at all, it must be by a 
faction of one part of the Union against another. If it be 
called into action by a faction of seven States, it will be 
terrible indeed. We must be at no loss how this combina- 
tion will be formed. There is a great difference of cir- 
cumstances between the States. The interests of the 
carrying States are strikingly different from those of the 
pi-oductive States. I mean not to give off'ence to any part 
of America, but mankind are governed by interest. The 
carrying States will assuredly unite and our situation will 
then be wretched indeed. We ought to be wise enough 
to guard against the abuse of such a government. Ee- 
publics, in fact, oppress more than monarchies." 

"The voice of tradition," said Henry, "I trust will inform 
posterity of our struggles for fi-ecdom. If our descend- 
ants be worthy of the name of Americans, they will pre- 
serve and hand down to the latest posterity, the transac- 
tions of the present times, and though I confess my ex- 
planations are not worth the hearing, they will see 'I 
have done my utmost to preserve their liberty.' " Tyler 
responded, "I also wish to hand down to posterity my op- 
position to that system. British tyranny would have 
been more tolerable." 

THE END. 



ERRATA. 

Page 8, line 28, for "what" read which. 

" 20, " 34, omit second reference, "t Ibid, p. 109." 

" 20, " 35, for II read f. 

" 25, " 18, for " Foote's " read FooVs. Also on page 61. 

'• 42, " 33, for " celo " read ccbZo. 

" 43, " 12, "Governor" read GrOitDerneur; and in other places where 
the name of Gouverneur Morris is incorrectly printed. 

" 59, " 14, for " Upsher " read Upshur. 

" 73, " 8, for " speciflation " read «peei/ica<ion. 

" 81, " 22, for " disti'ict " read cZu^mci. 

" 83, " 21, for "least" read ilcwZ. 

" 89, " 24, for " partial " read paZie»it. 

" 97, " 9, for "delagated" read deiefircrfed. 

"106, " 22, for " countries " read coitn^iex. 

"108, " 7, for " peeple " read jjeopZe. 

" 110, " 32, for "temporory " read temporary. 

"119, " 5, for " people " read People. 

" 193, " 11, for "thencefore" read henceforth. 



